The burden of proof in rape cases

I had an interesting discussion - well, more of a row, really - with my girlfriend yesterday following last night's episode of Silk on BBC 1. This featured a rape case in which - as is usually the case - the conviction or not of the defendant came down purely to the question of who the jury believes. In this instance, the defendant was acquitted, although the programme provided additional information to the audience compared with what was available to the jury so as to suggest that a guilty verdict would have been more reasonable.

The argument with my girlfriend was sparked off by my observing that, as far as I am aware, the guidance that is now given to boys in English schools is that they have to obtain definite, positive consent to sex in order to be sure that they are not committing a rape, rather than just the absence of a 'no'. In other words, it's no longer an excuse to assume that, if the woman does not say no, she is giving her consent: she has to provide a clear and unambiguous 'yes'. I then went on to say to my girlfriend that, in the rape case on the TV drama, this had not been reflected in the interrogations in court of the victim and defendant: the victim confirmed she had not said 'no', but this was allowed to be construed as a potential 'yes'; whereas if the man had been under an obligation to obtain a positive 'yes' (not just the absence of a 'no'), then the incident in question would much more likely have been interpreted as a rape. In other words, if a man does not obtain unambiguous consent, then consent should not be assumed, either by the man or by a court. I observed that the trial in the drama did not seem to reflect this shifting of the burden of proof in favour of the woman.

The row that ensued owed more to my girlfriend's own personal experiences than to the merits or otherwise of the technical point I was making, and my girlfriend argued that distinctions of the kind I was making changed nothing about the basic dilemma that it still comes down to who the jury believes. This is true. But it's equally true that the change in emphasis to which I was referring is not insignificant: while it doesn't affect the fact that rape cases hinge on who the jury believes, it does affect what they are required to believe; i.e. whether explicit verbal consent is given or not, rather than just implicit, tacit consent.

This distinction can be brought to bear on one of the drama's pivotal moments, where the council for the defence (a woman who has strong reservations, to say the least, about the merits of her own case) asks the defendant to look her, the jury and the victim in the eye and state that he didn't commit a rape. With the change in emphasis from tacit to explicit consent, the prosecution would have been able to ask the defendant not whether he had committed rape but whether at the time he was absolutely sure that he wasn't committing rape. Any hesitation or uncertainty on the defendant's part could then have been construed as implying that the defendant wasn't completely sure. In other words, even if, in his own mind, what he was doing didn't constitute rape, if there was any doubt about the consent of the woman at the time of the incident, then this is tantamount to rape: having sex without obtaining the explicit consent of the woman.

Of course, it is always possible that a man can have sex with a woman without being completely sure he has obtained her consent, and that the woman is in fact consenting but subsequently decides to accuse the man of rape. This is not a rape but the man is on one level just as 'guilty' as if it were: whether the woman was actually willing or not, the man did not fulfil his moral or legal obligation to obtain explicit consent.

If this principle were reflected in law, and not just in English school class rooms, then women would in fact be much more likely to be given the benefit of the doubt by juries; and it would make it easier to obtain convictions in rape cases.

However, if this principle were indeed incorporated into English law, would it mean that, in every single instance, consent could not be assumed and would have to be explicitly requested, thereby destroying the magic of intimate moments between loving couples slipping wordlessly into passionate love making, to say nothing of eroding the bonds of absolute trust that should exist between, say, a husband and wife?

And is a man making love to a woman without being 100% sure he has obtained consent - but where that consent is both apparent and actual - really effectively guilty of rape?

Embryos, Persons and the Mind Of God

“What one always has to bear in mind is that it’s the children that should come first - not chronologically or causally in this instance, of course, but in our thinking about what ultimately is in the mind of God for his children, as ‘our’ children have lived in his mind for all eternity. Does he want our children to be born of a father and a mother, and to grow up in the love of their father and mother? There can be no doubt, from the perspective of Christian faith, that the answer to this question is ‘yes’”.

The above is a quote from a post of mine on another blog. There it inspired a couple of comments, one of which was to the effect that if it was in God’s mind to bring children into this world through the loving union of a father and mother, wouldn’t he just do this? My reply - paraphrasing myself - was essentially ‘no’: it might be God’s will that this should happen, but our sin impedes and distorts God’s will, and must therefore be allowed to damage creation (if our freedom to choose evil as well as good is to be genuine); and that God could not arbitrarily alter the laws of biology he had made to reflect and express his loving purpose in creation simply to prevent us from abusing those laws to create and destroy human life without regard to the moral law.

This got me thinking about how we live in the mind of God, both during our temporal existence as living and breathing human beings, and in His eternity (which we view from our time-bound perspective as ‘before’ and ‘after’ our mortal lives). And how does that relate to our human personhood, and the ethics of human reproduction and embryo research?

My point is this: from the perspective of faith, human life by definition is always personal in the sense that it is an embodiment - a bodily image or reproduction - of the personhood of God himself: Father, Son and the love of the Spirit that unites them and gives rise to the whole of creation as the expression and reflection of the divine love and self-understanding (the Word). In this light, insofar as any actual human life form comes into existence, it necessarily has this essential personal character - as part of its DNA, one might say. This is the case from the moment of conception: the human person that has lived in the mind of God for all eternity now also lives in a time-bound, physical form. The Concept (the Word) has manifested itself in a material body: conception; the Word becomes flesh; a human being is made in God’s image. That human personhood is therefore as complete in a single fertilised ovum or a collection of undifferentiated embryonic stem cells as it is in a newborn baby or mature adult: alive, and able to survive and prosper outside the womb.

When I say that this intrinsic personhood of human life is built into our ‘DNA’, this is also a reference to the fact that, with respect to our genetic inheritance, we are all the expression and product of the union of our biological father and mother, even if the loving moral and spiritual union of our father and mother that God wills for us was absent from the specific biological process of our conception. God loves us into being even when love is absent from the human reproductive processes involved.

Those who attempt to morally justify embryonic stem-cell research seek to do so by denying that undifferentiated embryonic cells do constitute a ‘human person’ or ‘human being’ that might have rights similar to those of born human beings or even foetuses, such as the right to life; the right not to have medical experiments conducted on one’s body / person against one’s will; or the right not to have one’s fundamental genetic structure manipulated and combined with that of other species. It is doubtless scientifically and descriptively true - looking at the question from a materialist perspective - that a collection of undifferentiated embryonic cells does not (yet) have the characteristics that one tends to think of as defining personhood: the beginning of the formation of a recognisably human body, with all the immensely complex variety of cell and tissue types, and bodily organs.

But firstly, the religious - or certainly, the Catholic Christian - moral objection to stem-cell research is not based on such a definition of personhood: the bodily characteristics that appear to denote our status as human beings and persons are in a sense only the ‘outer’ material form of our personhood that in essence lives and exists in God. Once those cells exist, a human person that lives in the mind of God has begun to unfold in time and space, and to reveal and be a small but integral part of God’s loving creative and redemptive purpose.

Secondly, from a purely logical perspective, it is quite arbitrary to declare that after, say, 14 days from conception, what had previously been regarded as a mere collection of undifferentiated cells is now to be regarded as an embryonic human person with rights that it did not have during the first two weeks of its existence. The embryonic person would not exist now had it not gone through 14, or however many, days of undifferentiated-cell existence. This is a continuous process; and to declare that in the later stages of its development, the embryo has a humanity or personhood (humanity defined as personhood) that it did not have in the necessary earlier stages that went before seems completely illogical and self-serving; and it flies in the face of our intuitive perception of when our lives as human persons begin: from the moment of conception when the DNA structures that define who we are started to be laid down.
Besides which, the time limit from which embryos and foetuses are recognised as human beings or persons with legal and human rights is arbitrarily moveable depending on the purpose that is being justified: 14 days in UK legislation with respect to regulating stem-cell research, but 24 weeks when it comes to the legal limit for abortions. When does an unborn human person become a full human being and, as it were, a citizen with full legal rights? It appears to be the case that what defines the threshold for an embryo or foetus to be recognised in law as a human person in this way is merely the point at which they become physically (visually) recognisable as viable, autonomous human entities from the particular perspective that is invoked: that of the medical researcher who recognises that, beyond a certain point, he is extracting cells not from an amorphous, undifferentiated mass but from an actual living embryo that is starting to take on the visual, albeit microscopic, form of a human body and person; or the perspective of medical practice and childbirth, where the 24-week abortion limit was based on the latest stage at which a foetus could not survive if plucked untimely from the womb - a time limit which, for that very reason, is being revised in the current UK Human Fertilisation and Embryology Bill, as medical advances have made it possible for foetuses to survive from an earlier age.

This really is a rather primitive and, indeed, material, irrational and superstitious way to decide when an unborn human entity becomes a human person: simply when it corresponds to our bodily image of a human being - paradoxically defining the humanness of unborn life purely in relation to the appearances and conditions for survival of born life. The unborn clearly don’t stand a chance if the odds are so heavily weighted against them. In reality, the vision of faith and the science in this matter fundamentally concur; at least when the science is logically understood as describing a process whereby recognisable bodily-human personhood (what we think of as our existence and personhood) necessarily begins in the undifferentiated (’unrecognisably’ human) embryonic stem-cell state. If we are living human beings and persons now, that is because what we are now was already laid down and was potential within what we were from the moment of our conception - and, in the light of faith, within the eternal mind of God.

This is why, for me, it is so revealing that the Human Fertilisation and Embryology Bill, which has provoked such heated debate in the UK during the last week owing to prime minister Gordon Brown’s initial refusal to allow his Labour Party MPs a free vote on its morally controversial aspects, should sanction such diverse measures as the creation of hybrid human-animal embryos for the purposes of stem-cell research, and the removal of a legal reference to the ‘need for a father’ on the part of children born to Lesbian couples through IVF or other assisted-conception treatment. This latter provision extends to the very birth certificate of such children, in which it will now be possible for both women to be registered as the real (biological) parents, even if neither of them actually are the genetic parents (for instance, if a fertilised egg from another couple is used as opposed to IVF using the eggs of one of the women). This means that such children are officially without a father. They retain their existing legal right to try and trace their genetic father as soon as they reach the age of maturity (18 in the UK); but they will never be allowed to officially recognise that person as their true father - in the eyes of the law, he becomes a ‘mere’ sperm donor and no more.

The thread that these two measures in the Bill have in common is that they involve a denial of those two aspects of unborn human life that are fundamental from its very beginning: that it is personal and a product of the union of a man and a woman, in the sense that, from conception, the human entity is an individuated, unique and living combination of the DNA of its parents - DNA which in turn defines their personhood. And from the faith perspective, the unborn human being is also of course sacred: a living human person ultimately made by God in his image, which we are therefore commanded to respect and protect. And such is, not just the vocation of the believer, but the true calling of science: not so much to determine the ‘mind of God’ through empirical and theoretical enquiry into the material world that is in God but is not God; but to seek ways to cure the ills of our mortal existence that do not violate the purity and beauty of human life that is called in Christ to share God’s mind and love for all eternity.

Love of God or Love of Self: Homosexuality, Christian Ethics and Social Mores

They had Graeme Le Saux, the former England international footballer, on BBC Radio Four's Today programme on Tuesday of this week. He was talking about how, as a player, he was the object of innumerable insults and taunting for supposedly being gay, which he claims not to be. In 2002, I was present at a Spurs vs. Chelsea match where the Spurs home supporters did indeed mercilessly mock Le Saux for his gayness. I should add that this didn't prevent him from, as they say, playing a blinder and scoring the final goal in Spurs' 4-0 defeat – much to my chagrin at the time!

On the Today programme, Le Saux – who was promoting his autobiography – made the point that it is somewhat ridiculous and out-of-date that there should be such hostility and prejudice towards gays in the footballing world given that there is now so much openness and acceptance of homosexuality in all walks of life. On one level, this is of course true: dressing-room insinuations about a player colleague's sexuality smack of immature schoolboy humour, and there is clearly safety in a crowd in singing homophobic anthems from the stands.

On the other hand, football is one of the few heterosexual male-only preserves in our culture, and many of the men who play or watch the game would like to keep it that way. If they join in the gay-baiting, they are obviously in the wrong; but are they entirely wrong in feeling the way they do? It is the most natural thing in the world, or at least in human cultures, for men to seek heterosexual male-only activities as the occasion for so-called male bonding. In a culture in which women have increasingly – and justly so – asserted their rights to participate and compete in areas of society that were previously a male preserve, many ordinary straight men – not people one would think of as being reactionary or homophobic – feel inhibited from seeking and enjoying safe outlets for a bit of 'harmless' macho aggression, such as football.

But we're talking about attitudes to gay men here, not women. Well, yes and no. The point is football serves the purposes of straight male bonding: providing an outlet for men not just to display aggression but also affection for each other that is not tinged by other sorts of feelings. In English society, men are particularly inept at expressing their feelings of friendship for one another; so this typically needs to be enabled by a context that both draws men together in a common cause and allows them to behave in a way that demonstrates to their companions that they are masculine and straight – for example (but not necessarily) by making lewd remarks about women and derogatory remarks about gays. Clearly, gays are not welcome in such a 'club' of like-minded, red-blooded males. And if a member of the opposite club (i.e. the other team) can be insulted for their inadequacies as a man and put off their game by being slagged off as gay, then all the better. So while instances of homophobic chanting such as that directed towards Graeme Le Saux in the game I watched are clearly unacceptable and distressing, they could also be described simply as a group of men venting a bit of non-physically violent aggression and finding any excuse to jeer at their tribal rivals.

Hence, football provides for many men the opportunity to celebrate masculine prowess and enjoy male friendships in a way that poses no threat to their sexual orientation or gender identity. The growing involvement of women in the game probably adds to the feelings of anxiety that this male preserve is being encroached upon; it's just that gays, in traditional male society, are a more acceptable object of derision than women. Football is one example of more general anxieties felt by men to a varying degree, whereby the growing equality of women with men is perceived as leading to an increasing masculinisation of women (becoming physically stronger, socially more powerful and sexually more assertive) and a corresponding feminisation of men: encouraged to get more in touch with their feelings – traditionally thought of as a weakness; increasingly displaced by women from positions of power, e.g. in business, the family and the Church; and finding themselves presented as the (often inadequate, derided) object of feminine desire – or of gay desire.

This general cultural context provides a backdrop for understanding last week's expulsion of the middle-aged comedian Jim Davidson from the ITV reality-TV show Hells Kitchen. This was brought about by him asking the gay contestant Brian why 'shirt lifters' such as him always put on a particular camp facial expression. Brian took umbrage at the supposed homophobia of Davidson's words; and the comedian appeared to only add insult to injury when he later attempted to apologise by saying he understood where Brian was coming from and that he knew that GAY stood for 'as good as you'. Judging from the reactions of Brian and other contestants, this was clearly perceived as constituting another slur on gay people: either because it imputed to them an aggressive over-assertion of their rights (as Adele, the chief defender of Brian said, the correct phrase should be 'equal to you'); or because it was interpreted as being a sarcasm. Davidson was promptly asked to leave the show by its producers, as they couldn't risk the situation getting out of hand and generating a barrage of viewer complaints and regulatory criticism such as those which resulted from the so-called Shilpa Shetty racism row in Celebrity Big Brother earlier in the year (see my post of 23 February, The Amoral Market and the Randomness of Reward).

But were Davidson's remarks homophobic? I didn't think so. They were in keeping with Jim Davidson's comic style, characterised by humour appealing to the traditional male heterosexual audience: lots of jokes about gays and women. But Davidson is clearly used to getting as good as he gives; and in his circle, which indeed includes lots of gay performers, he would expect a remark such as his to be reciprocated with an equally cutting, sarcastic response – for instance, turning around the phrase 'shirt lifter' into a derogatory remark about middle-aged 'skirt lifters'. Instead, Brian just went into a wounded sulk, and some of the younger participants who thought Davidson had been completely out of order clearly did not understand or appreciate the humorous intent behind his comments. The point was that Davidson had overstepped the mark of acceptability. The goalposts have moved since Davidson was in his prime in the 1980s. Now, anything that implies hostility towards the inclusion and advancement of gays and women in roles traditionally reserved for straight men (such as the very masculine professional chef in Hells Kitchen, Marco Pierre White; or indeed, the stand-up comedian) is strictly taboo. Never mind that Brian, according to Davidson, had made a catalogue of unrepeatable remarks to him (not broadcast). Brian is a performer and comedian – his comedy and sexual insinuations are acceptable; Davidson's macho heterosexual humour is not.

The question about precisely where the boundaries of acceptability lie in relation to homosexuality is a really crucial one, for society and the Church. Leaving aside the related issue of how acceptable are ostensibly harmless, playful manifestations of macho behaviour and attitudes in general, there is a serious question about the extent to which 'public opinion' is now prepared to tolerate expressions of criticism, opposition or unease in relation to active homosexuality. For instance, is the taunting of supposed gays by football crowds really as bad as racist chants and obscenities, as Graeme Le Saux claimed? Liberal opinion would doubtless say that it is; but there is a difference between trying to wind up a player from the opposing team by mocking them as gay – when most people probably realise this isn't in fact true – and deriding someone for their ethnicity, which is an inescapable fact. The former is more an expression of aggressive support for the team, allied to ridicule of something that challenges heterosexual maleness; the latter is primarily an expression of real hatred.

An example of the shifting boundaries of acceptability in this area that is more far-reaching in its implications is the issue of adoption by gay couples, which has been the subject of several posts in this blog (see, for example, my post of 11 September). One of the conclusions that can be drawn from the whole stand off between the Church and the political establishment on this question towards the start of this year is that it demonstrates that it has become increasingly unacceptable in secular society to treat gay and lesbian people in any way differently from straight persons based on a moral condemnation of the gay lifestyle. If the decisions of our legislators do in fact reflect the general consensus of opinion, the eventual passing of the Equality Act without any special exemption for Christian adoption agencies could be taken as showing that the Church's moral beliefs about homosexuality are no longer shared by – indeed, are unacceptable to – the majority.

Another way to put this is that the civic and judicial principles of equality and human rights have encroached on another piece of the Church's traditional terrain: what the Church, along with the majority of society, has previously condemned as morally wrong is now declared as a human right; and gay sexual relationships (and by extension, the suitability of gay couples to become adoptive parents) are considered in effect to be morally equal to straight relationships, whether formalised in marriage or not.

It's worth observing at this point that this 'moral equality' corresponds more to an idea that gay relationships are equivalent to / 'equally as valid' as (no less but equally no more valid as) straight ones than to an idea that they represent an intrinsic, positive moral good – in the way that heterosexual marriage and traditional family life are generally accepted as being good in themselves. And this is because human rights are not the same as the moral right: they are morally neutral and content-less, essentially because what they constitute is freedoms; and freedom in itself is not a moral value but is rather the condition for making truly moral choices. For example, most people would accept the proposition that citizens of a free country should have the right to commit adultery, and many regard it as a woman's right to abort unwanted foetuses; but probably most people would regard both actions as not morally right – or at least, certainly not positively good. Similarly, while the majority may accept that it should be gay couples' right to adopt children, I doubt whether the majority believes this is better for most children than adoption by a father and mother – although it may in fact be better for some. Equally, it probably still is the majority view that homosexuality is not really 'normal' or 'natural' in quite the same way as heterosexuality – however these terms are defined – and, for this reason, gay relationships are not quite as 'wholesome', beautiful or conducive to true happiness as straight ones. But, partly out of sympathy for persons 'afflicted' in this way – and who therefore, it is thought, won't be able to have children – and partly out of guilt for society's past treatment of homosexuals, it is no longer acceptable to assimilate this sort of evaluation of homosexuality with any kind of moral judgement that it is 'wrong' or 'not as good as' heterosexuality. Or indeed the opposite of this: that homosexuality is as good as or better than heterosexuality. Any kind of valuation along the scale from good to evil is viewed as unacceptable; and an amoral equality suspends and takes the place of moral judgement. As Adele in Hells Kitchen put it, gay people are equal to straight, not as good as you, in Jim Davidson's words. From a traditional judgement that homosexuality is wrong, we've moved to a judgement that to make that moral judgement itself is wrong. But let's not dwell on the irony that it's the denizens of hell's kitchen who are the advocates of that view!

But do people really think that the traditional moral condemnation of homosexuality is wrong; or is it rather the case that it's just viewed as inappropriate to express it verbally and in one's actions? Jim Davidson's 'sin', as it were, was his perceived verbal violence towards Brian, viewed as a form of bullying and intimidation: he wasn't wrong to hold whatever views he does hold about gays; but he should have just kept them to himself. How can this be unpacked? Liberty and moral equality means that anyone is entitled to believe whatever they like and define their own morality. So, to be consistent, Davidson couldn't be condemned for his beliefs but only for the actions that flowed from them. These were seen as expressing an aggression directed against Brian's right to compete in Hells Kitchen and a slur on his personal morality.

These two ideas converge in the concepts of intrinsic human dignity and value. Because the secular-liberal ideas of rights and liberty are morally neutral, the concept that is used to transform them into positive moral values in their own right is that of the fundamental dignity and goodness of the human person. By making the universal dignity of the human person the place and source of moral goodness and value, this makes it impossible to make categorical moral judgements about a person based on their actual behaviour and desires. Whatever these may be, it is thought, they cannot impair the fundamental goodness of that person as a human being. That's why the liberal can morally condemn a person, rather than an action, only by labelling them as inhuman; and why psychopathic despots such as the Nazis can justify attempting to kill off whole races only by making them out to be sub-human.

The point of this is that any moral judgement, real or imagined, of someone that is associated with a characteristic viewed as defining them as a human being (e.g. homosexuality) is taken by the liberal – insofar as it is a moral judgement – as an attack on the dignity of that person, not a criticism of the morality of their behaviour or desires. Making jokes about 'gay shirt lifters' is an attack on them for being gay not a wry observation about their shirt lifting, which may contain a germ of truth. And the more that gay persons – and justly so – take a stand on their common humanity and equality, the more it becomes impossible to morally criticise any of their actions without appearing to condemn them as persons.

This presents a problem for the Church, which has always made a distinction between condemning the sin but not the sinner: it's not wrong for a person to be gay, but it is wrong for them to indulge in and act upon their desires. While there is a valid logical and ethical distinction between judging a person and judging their actions, in practice, it is often hard to tell them apart. The Church greatly contributes to society's perception that it condemns gay people for being gay rather than for their behaviour through the logic and tone of the language it uses to set out its position and teaching. Let's take the case of the opposition of some in the US Episcopalian Church to that Church's ordination / consecration of openly gay priests / bishops and the blessing of gay unions, chronicled in an interesting article this week in the Wall Street Journal. The terms in which the condemnation of such priests and unions is often expressed both logically and implicitly involve judging the person as well as their actions. The bone of contention is not just that some of the priests involved are in gay sexual relationships but that they are 'openly gay'. But, of course, you can be openly gay without being sexually active. The controversial gay bishop of New Hampshire, Gene Robinson, claimed that his gay partnership was 'celibate' / non-sexually active. It is as if the Church really is perpetrating what liberal defenders of gay rights and the likes of Brian perceive to be the case: that their moral criticism of behaviour implies impugning the dignity and goodness of the person as gay.

This impression is certainly supported by the lurid tone and imagery that's often used. The above Wall Street Journal article refers to the belief in the Ugandan Church, where dissident Episcopalian clergy have been consecrated as bishops, that homosexual acts are Satanic. By inference, one cannot imagine they would have too understanding a reaction to anyone, ordained or not, who came out as gay, even if they were committed to leading a celibate life. Do the conservative Episcopalians really wish to align themselves with such opinions? But they are not that far removed from the language and attitudes of conservative Christians of all denominations, and not just in the USA, some of whom draw support from the Old Testament teaching (as quoted by the Wall Street Journal article), “Thou shalt not lie with mankind, as with womankind: it is an abomination”.

Such views about homosexuality, active or not, are simply not shared by most people in Western societies and, arguably, by most Christians in those societies, too. Would any reasonable person not in fact think that using this sort of language implies a repudiation of homosexuality per se as well as an objection to homosexual behaviour, especially as many churches clearly don't bother too much to make this ethical distinction in the first place? If you regard gay sex as Satanic, then an openly gay person must logically be seen as being under the influence of Satan; which can then lead to the attempts made by some churches to 'exorcise' or 'heal' gay persons of their homosexuality. And it is also an obvious observation that even rational ethical teaching critical towards homosexuality can provide a 'safe' outlet for expressing a characteristically heterosexual repugnance towards the idea of gay sex acts, which strictly speaking has nothing to do with ethics. The fact, for instance, that you personally might find the idea of gay anal sex abhorrent doesn't of itself validate your belief that it is morally wrong; but the belief that it is morally wrong can provide an apparently reasonable justification for expressing homophobic feelings about it.

Even the more rational and tradition-heavy language used by the Catholic Church in its teaching about homosexuality presents huge difficulties in terms of bolstering the liberal view that the Church is simply stuck in the Dark Ages in its thinking in this area. For example, the use of the term 'unnatural' to describe gay sex is extremely difficult to explain or justify to non-believers. In two major respects, this classification is viewed by serious secular opinion as being completely inappropriate to describe homosexuality. Firstly, according to the empirical-scientific understanding of nature, homosexuality is a completely natural phenomenon: a universal characteristic of human societies and psycho-sexuality throughout the ages, for which many possible explanations have been brought forward by both the natural and human sciences. Secondly, from a philosophical point of view, the term 'natural' is regarded as highly problematic and relative. What any given society regards as natural is viewed as being determined to a very large extent – but not necessarily exclusively – by contingent cultural factors: it used to be thought unnatural for women to want to pursue careers, but now it's not; similarly, it used to be thought in Western societies that homosexuality was unnatural, but now it's largely not.

But when the Church uses the concepts of natural / unnatural, it's using them in a different sense from these secular understandings of the terms. The Church is of course referring to the concept of the divine Order of creation, lost through sin, and restored in Christ. Homosexuality, in this context, is considered unnatural because it goes against the purpose for which sexuality was made: to be the means through which human beings are called to share in God's creation of new life, making the union of husband and wife an objective, real union with and in Christ. And this is not, as is often thought, merely about procreation. God's work of bringing new life into being that married persons are called to share relates to the entirety of the cycle of creation and redemption in Christ: not just bringing a new human being into this world and into the life of the sin-bound flesh; but helping to bring them into the new and everlasting life of the Spirit, into which this life is but a slow and painful process of being born.

Sexuality is therefore intrinsically linked to our Christian vocation: to a calling to be led by God into a life of holiness and of the Spirit that ultimately transcends the needs, desires and values of a merely material world. The Order of nature from which homosexual behaviour is said to fall short – to be 'disordered' – therefore refers not primarily to the empirical nature of the scientists or the culturally specific world of the socio-anthropologists, but to a creation restored to union with God in Christ, of which this present, secular world is but a patchy blueprint.

Without a clear presentation of this metaphysical context for Christian beliefs about the role and place of sexuality, the teaching on homosexuality cannot fail to appear to be merely a form of outdated prejudice flying in the face of objectively observable fact. Simply discussing the issues using terms such as unnatural and disordered – because they are regarded as just not epistemologically accurate – then appears intellectually uncritical and homophobic. The Church must find contemporary language to put across its precious spiritual inheritance: not by changing the traditional teaching but translating and presenting it in clearer, more modern terms.

For starters, the Church has to overcome the impression that its teaching is that heterosexuality in general (however it is expressed) is of itself natural / good, and homosexuality (whether actively expressed or not) is always unnatural / evil. According to my understanding, at least, of Church doctrine on the order of nature as creation, the opposition is really between sex within marriage [good, holy] and (gay or straight) extra-marital sex [sinful, unholy], not between heterosexual and homosexual sex. Extra-marital heterosexual sex is to be considered unnatural and disordered, in a similar manner to homosexual sex, because it is a case of the couple using sex for their own gratification and purposes (which could even include having children) in a manner that is closed off from the life in Christ of which their loving sexual union is intended by God to be seal and symbol: a bringing together of the dual creative and redemptive work of Christ – creation of a new human being in the flesh and a commitment on the part of the couple to share in Christ's loving work of redemption and spiritual rebirth in that child.

According to this view, becoming involved in a sexual relationship (gay or straight) outside of the divine purpose for which sex was created necessarily leads to a person being drawn away from their vocation to a life of holiness and dedication to the loving service of God. For unmarried persons – some straight persons and, by definition, all gay persons – this vocation can therefore be lived out fully only in a celibate life. But, by the same logic, most people haven't attained true holiness yet and, therefore, many cannot sustain celibacy; and, indeed, it is unsustainable without dedication to a life of holiness and spiritual conversion. Therefore, we should be very wary about appearing to condemn sexually active gay individuals – whether avowedly Christian or not – unless we are prepared to condemn ourselves for our own misdemeanours, including the all-too frequent deviations from sexual holiness (chastity) on the part of married or unmarried straight persons: lusting after persons other than one's spouse; indulging in conjugal sex that is not open to the creative-redemptive purpose God intends for it; infidelities and one-night stands; etc. Judge not lest ye be judged.

Therefore, the Church has to find a language to put across the context of the call to holiness and to a new life in Christ and in the Spirit that is the foundation of its teaching about homosexuality. It's not wrong to be gay; but acting upon, and building one's life around, the desires that being gay induces can lead one away from knowing and loving God – from the meaning of life itself and the core of one's very being. Perhaps, in pastoral work and teaching, as well as referring to gay sex in the formal, doctrinal sense as unnatural and disordered, we could use terms such as 'alienated / alienating' (from one's true vocation); 'non-holy' (orientated towards material and temporal priorities, rather than eternal, spiritual ones); and 'non-vocational' (a gay life that ignores the traditional teaching about our Christian calling, rather than one which tries – albeit imperfectly – to conform itself to that teaching).

Moral objections to active homosexuality, if expressed in these or similar terms, and with reference to the full context of Christian belief, could begin to be understood as what they properly are: not an attack on but rather a defence of the person – a call for each of us to relinquish our self-love and, in so doing, embrace the love of God.

Gay Adoption and the Catholic Church: A Re-assessment

9 September 2007

A fitting day, indeed, in which to reconsider this topic: Our Lady's birthday, according to the traditional calendar of the Church. I don't mean this in any sacrilegious sense: I'm a Catholic believer myself and have a devotion to Our Lady. As the spiritual mother of all humanity – so the Church teaches – the Blessed Virgin stands as a sign of the love and compassion we owe to all children, whether the fruit of our loins or not.

There's been a strange silence these past few months on the issue of the potential closure of the UK's Catholic adoption agencies, unwilling or unable to accept the terms of the 2006 Equality Act that might oblige them to take on gay and lesbian prospective adoptive parents. The public debate over, and the Act passed into law, everything has been covered with a veil of discretion as delicate discussions are doubtless held internally within the Church, and between the Church and government.

I myself wrote a number of posts on the subject in this blog earlier this year, culminating in two rather agonising, heartfelt pieces in March. The second of these pieces chronologically (dated 29 March) contained a rather intricate argument to the effect that the Church's position rests on a belief that sexually active gay persons do not have a 'right to become parents'. This conviction, according to my argument, was in turn based on the view that such persons' wish to become parents was invested in their 'unnatural' and non-life-giving sexual behaviour and, for that reason, was also unnatural and corrupted (indeed, corrupting) at root.

I contrasted this view with one whereby gay persons' sexual activity could be seen, to some extent, as not expressing their reproductive instinct and wish to have children; and that, accordingly, that instinct and that wish could be considered to be natural – indeed, God-given and inspired by the Holy Spirit – as opposed to their 'unnatural' sexual feelings and behaviour. Gay persons – not in general, but particular individuals or couples – could in this way potentially even be thought to have a vocation to adopt needy children: sharing in the work of Mother Church in giving life to her children through the love and power of the Spirit.

Several months further down the road, I'm beginning to think I might have got things slightly mixed up: not the overall thrust of the argument, but the understanding of the relationship between homosexuality and the reproductive instinct, and of the Church's position on that. I think now that the Church's teaching is actually closer to how I described these matters from my own perspective at that time: that in gay sex, the sexual feelings and activity become somehow dissociated, closed off, from the reproductive drive and the wish to create new life; and that therefore, sexual gratification becomes, for the individuals concerned, an aim in itself, separated from the procreative purpose which sexual activity is intended by God to fulfil.

Meanwhile, my own position has flipped over to one that's closer to how I described the basis for the Church's beliefs: that actually, all sexual desire and activity – including the 'gay' variety – does in fact express the individual's reproductive instinct and wish to become a parent, even if these drives are hidden in the innermost depths of their heart. However, far from this then vitiating gay persons' urge to procreate – even though expressed homosexually – this presents a basis for saying that everyone, gay persons included, has a natural and God-given predisposition to parenthood. This is part of our core, common humanity; part of our true nature as creatures made in the image of God the Father, Son and Holy Spirit: parent, child, and giver and receiver of love and life.

Objectors might ask how it is possible for gay desire and sexual activity to be manifestations of a natural urge to reproduce, when they are clearly incompatible with such an aim. But from an impulse or an action being incompatible with its alleged underlying cause or stimulus, one does not have to infer a different, 'real' motivation (e.g. that gay sex represents, indeed in part springs from, a deliberate rejection of reproductivity). What we do in life is so often inappropriate or counter-productive in relation to what we set out to achieve, particularly so in the field of the human heart and relationships. The fact that gay sex cannot result in children being conceived does not mean that a wish for children is not part of the tangled causality of gay desire – as, indeed, the serried ranks of potential gay adopters and gay couples seeking means of assisted conception would appear to testify.

One important distinction, however, is that for gay persons, it could be argued that this natural, human wish to be a parent cannot automatically be squared with a vocation to parenthood. Not natural parenthood resulting from an act of heterosexual intercourse, that is. Or can it?

As I argued in my post of 29 March, the creation of new human life from a 'natural' act of heterosexual intercourse does not of itself indicate that the parents had a vocation to be the child's parents in the sense in which this term is often understood. E.g. the sexual act could have been entirely a one-off episode, with neither of the parents having the remote intention either to marry or become the progenitors of a new life; or one or both of the parents could already be married to someone else. In other words, the mere fact of a child being born as a result of a natural (heterosexual) sex act does not prove that it was right for the child to be conceived at all, according to the Church's moral law.

A contrary case could be the not uncommon situation whereby persons who are on balance probably more gay than straight enter into a marriage, partly because they want to try to be straight (sometimes out of religious conviction on top of the psychological motivation), and partly also to satisfy their 'natural' urge to become parents. Then, after a period of time, and perhaps not until the children have grown up, the 'gay' partner can no longer maintain the suppression or denial of their homosexuality, and comes out – often, but not in fact always, resulting in the destruction of the marriage. (Noted example, the gay Anglican Bishop of New Hampshire.) Can one assert with absolute confidence that the original motivation was so defective that the marriage should be annulled? However, if you do not think this should happen, this could be an instance of a gay person actually having had and responded to a vocation to be a natural parent: a biological parent, whose parenthood results from natural 'straight' sex.

OK, you could argue that, at the time when the sexual acts in question took place, the 'gay' spouse either felt or believed themselves to be straight; or at the very least, they loved their spouse and wanted to be a good wife or husband, and a good mother or father. But that's really making a judgement about a person's true inner motivation and feelings that no human being is in a position to make. What if, in reality, that person knew that what they were doing was fake but still wanted it out of compassion for their spouse and a genuine, natural longing to be a parent? Does that mean their vocation to marriage and parenthood was also a sham?

From the above two examples, I would conclude that neither the presence of 'natural' heterosexual desire within the sex act resulting in conception nor its absence necessarily validates or invalidates the proposition that the persons involved had a vocation to produce that child – when one looks at the issue of vocation in a traditional, legalistic way. But it is possible and necessary to look at it another way: that the vocation is demonstrated by the very existence of the child, called into being by God as the child of both parents – necessarily requiring them both to be involved as part of its very being. The vocation is, in this perspective, entirely separate from any consideration about the morality or appropriateness of the human situation that gave rise to the conception. And, indeed, one must remember that, according to the traditional teaching, all human flesh is born to some degree out of sin; all origination is bound up with original sin. It is not the motivation to become a parent that demonstrates the presence of a vocation to do so; rather, it is the fact of being a biological parent that represents the giving of the calling to become a true parent: the vocation to bring a child to life in the Spirit as well as in the flesh.

It is clear that many straight biological parents fail to respond to this true parental vocation by not living up to their responsibility to care for their offspring or by abandoning their children altogether, whether as a result of their own personal problems or out of callous indifference. Equally, it should be clear that gay biological parents are sometimes better than straight ones at being true parents: emotional and spiritual nurturers and carers of their children. Just as the circumstances in which the child was conceived has no intrinsic bearing on the vocation of the parents to become true parents (the vocation being their duty of obedience to God's will for them in this regard), neither does their sexual orientation.

Can one apply these same principles to the issue of adoption? Without repeating all my arguments about the potential suitability of gay persons – whether single or in a relationship – to become adoptive parents (see my post of 21 March), it would be consistent with this view of vocation to say that the mere fact of a person or a couple being straight or gay does not make them intrinsically more or less worthy of receiving and responding to a vocation to become an adoptive parent, if one defines an adoptive parent as someone who takes on the vocation to be a true spiritual parent to a child which that child's biological parents have not been able to fulfil.

There is, however, a crucial difference: whereas in the case of biological parenthood, the suitability of the individuals to become parents and the morality of the situation in which they did so have no bearing on their receiving a parental vocation, in situations of adoption, it is of course incumbent on adoption agencies to find parents who will be able to fulfil that vocation, which the child's natural parents failed to do. And in this respect, criteria such as whether the adopters are 'suitable parents' and the extent to which their lifestyles are moral or not, come into play. Clearly, for the Church, a sexually active gay couple is automatically deemed to be unsuitable to adopt children, as their lifestyle is considered to be gravely immoral. There seems no way out of this closed circle. All the same, if gay persons in fact can be good biological parents – in the ordinary sense of the term 'good parent': loving and devoted to their children's best interests – it seems logically inconsistent, at least, to state that no gay person or couple could ever be suitable candidates to adopt a child: incapable of living out a vocation for parenthood.

This is not in fact – at least, not in principle – the position of the Church, which in theory recognises that single gay persons (but not, contradictorily (?), celibate gay couples) can make excellent adoptive parents. But in practice, the Church appears to have excluded any possibility of working within the terms of the new UK legislation, for instance by submitting prospective gay adopters to a rigorous process of examination and scrutiny as to their ability to give particular children on an agency's books the love and security they need.

Are we to conclude from this that it's the Church's view that it is better for children to be placed with stable straight couples – even if they're not Christian, and even if they're not married – than with stable, gay Christian couples, even if they're celibate? What's the logic behind that, if that really is what's implied by the Church's stance? That a loving sexual union between a man and woman, even outside of formal Christian matrimony, presents a more authentic image to the child of the pattern of true Christian living than the love of two Christian persons of the same sex for each other and for the child? And it does not even appear necessary for gay sexual activity to be present for the latter type of relationship to be considered un-Christian. This is because the Church appears to make no real qualitative distinction between celibate and sexually active gay couples in this context, as both are ruled out in relation to adoption. Indeed, even a celibate 'union' between two gay persons can involve an exclusive, mutually self-giving commitment on the part of two individuals that can resemble a marriage in all but name and could be wrongly (in the eyes of the Church) accepted by the child as morally equivalent to a marriage.

Ultimately, then, it comes down to this: the Church is defending not the sanctity of marriage, but marriage as the sign and symbol of the naturalness of heterosexuality as the wellspring of family and parenthood. But whether one is heterosexual or not has no intrinsic bearing on whether God choses one as a parent. Gay or straight, promiscuous or faithful, all parents are answerable to God for the way they respond to his choice of them. The Church, on the other hand, choses not to chose gay persons for the role of parent; and in this, she, too, is fulfilling the responsibility to defend the truth and obey the divine commandment as she has received it. But gay persons will continue to be chosen by God for a vocation as parents, whether biological or adoptive. In the latter case, this choice will be made through the medium of adoption agencies but, regrettably, no longer Catholic ones, it seems. But it is to be hoped that the couples and children involved will not be left as orphans: bereft of the support and prayers of Mother Church. For if the Church is not the only agency that can open up the grace of adoption for gay couples and their children, it still holds the keys to the door.

New Principles For Marriages and Partnerships

In my blog of 17 December (‘Modern Sexual Morality’), I stated that in my view, it would be sensible if our society were to formulate some new ethical and legal principles governing civil marriages and partnerships, involving – among other things – a clearer separation between the thinking on these and Christian marriage (as well as religious marriage in general). I argued that the way we view civil marriages and extra-marital, committed partnerships continues to embody some of the moral standards and judgements associated with our Christian tradition, even though some of the types of relationship themselves could be deemed to be morally at fault on a more dogmatic interpretation of Christian teaching.

In general, the combination and interplay between Christian and liberal principles (what I term ‘Christo-liberalism’) create a great deal of ambiguity about sexual ethics. This contributes to undermining marriage and stable relationships, in that the permissiveness that society tolerates and even encourages in some areas comes into conflict with Christian-derived standards that are expected in other areas. This exacerbates the tendency for individuals in relationships to have different expectations about the degree and type of commitment that are involved; and, indeed, it makes the whole basis for commitment as such more difficult and unpredictable.

In my blog of 16 December (‘The Paradoxes Of Gay Marriage’), I argued in favour of a tripartite arrangement for marriages and formally recognised partnerships: religious marriage (heterosexual, according to the provisions of the faiths concerned); civil marriage (open to both straight and gay couples); and some sort of looser civil partnership arrangement recognising and affirming committed extra-marital partnerships (straight and gay). In the present blog, I will attempt to map out the shape that these two kinds of civil marriage / partnership could take once the inherited Christian moral demands and expectations are stripped away from them. This is not to undermine Christian marriage; quite the contrary. Both Christian and civil marriage could be strengthened if a more rigorous and consistent set of distinct standards and values relating to each could be clearly articulated and agreed, while family law were modified in accordance with those new principles.

1 Civil marriages (gay and straight)

Civil marriages already exist, of course: those carried out, in the UK, in a register office. They are not yet available for gay couples; although I would propose extending them (but not church and other religious marriage) to gays and lesbians.

Some key points in this proposed new ethics of civil marriage, which would then need to be reflected in legislation, are as follows:

1.0 Guiding principles

1.0.1 The relationship between the spouses is accepted as being potentially impermanent and non-exclusive

Under the prevailing mores of our society, civil marriages are in fact, if not in right, predicated on an assumption that they might not last and can be dissolved. The very existence of legal divorce means that a civil marriage, as a legal contract, is reversible. Christian Churches vary in the extent to which they accept divorce. So long as they are held to be valid, Catholic marriages are believed to be permanent: even if a couple obtains a civil divorce, the Church does not recognise it, and the individuals are not able to re-marry in a Catholic church. The Church of England also in principle does not permit re-marriage in church for the same reason (the definitive character of the original wedding vows); although it does recognise divorce and give church blessings to divorced individuals that are obliged to re-marry in a civil ceremony.

This was of course the reason why Prince Charles and Camilla Parker-Bowles were forced to get married in a register office. By an interesting quirk, there would have been no impediment to the royal couple getting married in church if the Prince had been Catholic (. . .). This is because Mr Parker-Bowles (a Catholic) had obtained an annulment for his marriage to Camilla, presumably on the basis that Camilla had not really meant her vows (including promises of life-long love and fidelity) when she made them. Annulments mean that the original marriage effectively never existed as a true sacramental union; so that Camilla was not divorced but single in the eyes of the Catholic Church, and so eligible for a marriage to a widower (Charles).

It is, on one level, entirely reasonable that the Church or any religion should demand of those of its followers who get married that they should promise to love each other and remain faithful to each other permanently and exclusively, and that this should be part of the core concept of marriage (and that in the absence of such a commitment – as in the case of Camilla Parker-Bowles – the marriage is invalid). But is it reasonable that the state should expect such a commitment from couples contracting a civil marriage? It is not part of the remit of the state to assert any kind of duty for one citizen to love another to the exclusion of any other sexual relationship, and to maintain that love indefinitely. In a way, it is almost a case of the state over-stepping its rightful areas of jurisdiction and competence that the civil marriage or partnership ceremony should involve declarations of life-long love and fidelity; apart from the fact that these promises could appear unrealistic from a psychological or spiritual point of view without some sort of appeal in faith to a higher authority than the state – although Christian marriages, according to the statistics, are just as prone to break up as civil unions. Hence, the promise of life-long love and fidelity is an example of what I mean by Christo-liberalism: the civil authorities and law effectively taking on one aspect of the Church's role and value system, and expecting a Christian-type commitment from a secular marriage.

Under my proposed new framework, marital infidelity (adultery) would no longer be a sufficient justification in itself for obtaining a divorce. This is because, built in to the concept and legislation for civil marriages, and perhaps even into the wording in the wedding ceremony, would be a realistic expectation that infidelities on both sides might well occur. In order for specific acts of adultery to be taken into consideration when deciding whether to authorise a divorce, they would have to be viewed in the context of the whole relationship; i.e. whether the relationship as a working partnership had broken down, and whether more harm (emotional, practical, financial, etc.) to all affected, including children and other dependants, would be done if the couple stayed together or separated. There would also be a more formal process for trying to achieve reconciliation between the spouses, which I will go into further below.

But if a civil marriage cannot reasonably demand life-long love and fidelity, what the state does have the right to expect from marrying individuals is a contractually binding, reciprocal duty of care on the part of the spouses for each other and for any dependants, particularly children and extended family members, e.g. elderly relatives. This leads to my second new principle for civil marriages:

1.0.2 Permanent, contractually binding duty on the part of the married individual to look after the needs of their spouses and other dependants, including if the relationship breaks down and the marriage is dissolved in a divorce

The idea behind this is that even if there is a realistic acceptance that feelings may change and the marital relationship may come to an end in emotional terms, the commitment to marry someone should involve accepting that one is taking on a permanent responsibility for their care. In a religious context (and in the current Christo-liberal version of civil marriages), this responsibility is viewed as a natural extension of the commitment to love one’s spouse for the rest of one’s life. In a de-Christianised civil marriage, the continuing nature of this duty of care becomes a matter of social justice. On marrying, spouses make promises to one another that involve decisions affecting the whole subsequent course of their lives (careers, relationship possibilities, etc.). In addition, the state provides incentives for people to get married and have children through the tax and benefits system. Divorce represents a considerable economic cost through the greater dependency of single parents on social services and benefits; through the poverty that it can bring about; and through the personal and social problems experienced by children that are affected by the break-up of their parents and continuing instability in their family lives.

Ensuring that, as much as possible, divorcing individuals are held to the commitment of ongoing care they made when they married is a means to compensate their spouses for the sacrifices they have made for the sake of the marriage and their partner; and it is a way to lessen the other social and economic costs. The increased legal obligation to provide financial support and exercise an ongoing duty of care towards spouses and dependants would be a function of an enhanced set of rights and responsibilities in marriage.

1.0.3 Re-definition of the meaning of the married state itself, and the rights and responsibilities that accompany it

1.0.3.1 On marrying, individuals would be deemed to have established a permanent relationship between themselves, their spouse and their spouse’s family: they become a member of the spouse’s family. After any divorce, they continue to be a member of their former spouse’s family: they can no more sever that tie than they could cease to be the parent of any of their children, or the aunt and uncle of nephews and nieces with whom their children are genetically related.

This is a formalisation of a principle that also applies to Christian marriage. But again, in the civil context, the purpose is not to imply some sort of ontological union between the husband and wife (who in Christian terms become ‘one flesh’, and hence one family) but to express the truth that families continue even when parents split up, and to encourage the relationships both in the nuclear and the extended family (e.g. between parents-in-law and children-in-law; or between uncles and aunts, and nephews and nieces) to be healed and to prosper, emotionally and materially. When couples marry, they effectively take on the roles and responsibilities previously exercised by their spouse’s parents towards their partners and towards other dependants in the family, including eventually the couple’s parents themselves as they need care in old age. This is the meaning of a father ‘giving away’ the daughter to his son-in-law in marriage: the husband takes on the role of care previously fulfilled by the father.

Formalising the principle that marriage makes the spouses permanent members of each other’s family – whether or not they have children who are then genetically related to the extended family – is a way to underscore the importance of the duties and promises towards the whole family that spouses make when getting married: they can no longer consider that they have a lesser duty towards relatives with whom they are not genetically related than towards those with whom they are.

It may seem unnecessary to encode family relatedness in law in this way. However, I would argue that this is not entirely arbitrary but corresponds to the deeper psychological and socio-anthropological significance of marriage: that an individual does not just marry another individual but marries into an entire family, towards which they then have social, moral and legal responsibilities. Enshrining these things in law would be a way of realigning modern Western social practice in the marriage area with these universal psychological and socio-anthropological meanings, which are more explicitly expressed in less secularised cultures and religions that still place a greater emphasis on the extended family, e.g. Hinduism and orthodox Judaism. Along with greater responsibilities, this also gives married persons greater rights as integral members of their spouse’s family.

It might well result from this proposed change to current social and legal practice that the family ties that a re-marrying person felt towards their second acquired family might be weakened if they continued to view their first acquired family as family. But then the provisions of the law (discussed further below) setting out both the continuing responsibilities towards the ‘divorced family’ and those towards the family of the second spouse are intended to reinforce realistic, responsible and caring attitudes and behaviour towards both families. In any case, the purpose of formally instituting the idea that marriage involves marrying into a whole family – for good – is not to weaken second marriages but to help ensure, wherever possible, that first marriages and their socially beneficial effects endure.

1.0.3.2 Spouses have a particular responsibility of care towards their children and stepchildren, along with a clear set of rights. Establishing the principle that, even after a divorce, an individual continues to be a member of their spouse’s family makes it even more difficult for divorced parents to ignore the needs of their children or any children of their spouse from a previous relationship or marriage with whom they have also established any sort of parental relationship. In contrast to the view set out above that spouses cannot be under the obligation to love each other permanently and exclusively, they should be considered to have at least a strong moral obligation to love their children; and a formal, legal obligation to provide for their children’s material needs, even if they are not able to provide for all their emotional needs.

The new law and practice of civil marriage would therefore include strict measures to ensure that absentee parents continued to look after their children’s and stepchildren’s financial and material needs. And at the same time, there would need to be a better way to ensure equal treatment in the assessment of which parent was best-placed to have the greater share of custody, and to enable regular and sufficient access to the children for the parent not awarded custody. In particular, there should be no bias in the determination of these things towards the party in the divorce viewed as being more ‘wronged’ in the marriage break up; and no assumption that mothers are ‘naturally’ more suited to being the main carers than fathers.

These two ideas (the mother as the wronged party and the more able carer) currently often go hand-in-hand and are part of the Christian inheritance that has been taken forward in modern secular (Christo-liberal) marriage. This leads to custody decisions often being made on the basis of reward and punishment in relation to a moral judgement that is taken about unfaithful husbands having violated the ‘sanctity’ of marriage and of motherhood; ideas which clearly derive from the Christian history of our country. These judgements should really be regarded as irrelevant within a fully secular marriage institution. In particular, assessments about custody and access should consider the children’s needs and wishes (emotional, social and economic) first and foremost, and then the rights of both parents to continue to play an active role in their children’s upbringing so long as this will not be detrimental to the children in any way.

1.0.3.3 The above two provisions apply equally to straight and gay couples. As civil marriage would now involve a clear social purpose (cementing strong extended families and fostering responsible personal relationships), and a strict set of rights and responsibilities, there is no reason in a secular context why these elements should not be extended to gay couples as well as straight partners. This is what would give gay marriage a real social and cultural meaning beyond a ‘mere’ celebration of the love and partnership of two individuals. So, under the new regime I am proposing, gay spouses would be considered in law to have become permanent members of each other’s families by marrying each other. For instance, if one’s gay son gets married, his husband becomes one’s son-in-law; and the son-in-law becomes an uncle to any of his husband’s nephews and nieces; etc. And, just as in straight marriage, these family relationships and the associated responsibilities towards extended family members would be considered to continue to be in effect even after any divorce.

The same goes for the duty of care and maintenance towards spouses and children: this should also be considered to remain in effect just as much for gay divorcees as for straight ones. With respect to children, gay married persons should have full equality in terms of assessments of their suitability to become parents: through adoption or equal access to assisted reproduction, e.g. through artificial insemination (for lesbians) or surrogacy (for gay men). If either of the spouses were already a parent before getting married, there should also be no discrimination in determining whether or not the newly married gay couple should have custody over them (if this were disputed with the other parent), or which of the spouses should have custody over any children in the event of a divorce: again, the needs and wishes of the children should be paramount.

Whether or not one regards the advent of the gay family, and the use of artificial means of conception to enable gay persons to become parents, as desirable or morally acceptable is largely irrelevant within the context of a fully secularised marriage institution. Again, these are considerations and judgements that derive from the Christian tradition. The main concerns from the civil perspective are fostering strong family ties and responsibilities; and ensuring the maximum degree of continuing, stable care for family members and children that either already exist or who will be born to gay parents – whether or not society decides to extend the framework of marriage to such gay relationships and families. If that framework is created, this offers the chance of giving those children greater support and rights as they progress through childhood. But this involves society shedding its remaining prejudices about gay people and gay sex: its association as something inherently dirty and immoral that does not have a place alongside and within family life. And if society really decides that gay people are deserving and capable of taking on the elevated set of obligations and privileges that should be associated with civil marriage, then it follows that they should be viewed as capable of taking on responsible parenthood just as much as their straight counterparts.

1.0.3.4 A new language to describe family relationships is required to accommodate these new concepts of the permanence beyond divorce of family relationships that are sealed in a marriage, and the extension of these relationships to gay marriage. For instance, if lesbian and gay married couples either have children through some form of assisted conception or surrogate pregnancy, or adopt children, should both partners be called the mothers or fathers of their children respectively? In other words, should it be possible for a child’s two legal parents (either on the birth or adoption certificate) to be of the same gender? Currently, in English law, it is in fact possible for a child to have two legal fathers or mothers in the case of adoption by a same-sex couple. Interestingly, though, the language that is used about such families – either the official, legal terminology, or the informal language used by parents or children of gay adoptions to refer to their family relationships – tends to avoid phrases such as ‘two fathers’ or ‘both my mothers’; the words ‘parents’, in the formal context, or ‘dad(s)’ and ‘mummy/-ies’ etc. in the informal context, are often preferred.)

This issue of gay parents is a very wide-ranging question covering a multitude of individual circumstances. But in theory, in a civil context, there is no absolutely compelling reason why a child should not have two official mothers or fathers. The sources of objection to this idea are threefold: the Christian tradition (and other religious traditions); an argument from human nature; and psychology. The basic objection itself is similar from all three angles, i.e. that a child needs both a mother and a father, because this is the natural way that a child is procreated, brought up and comes to negotiate its own role in society, including gender role(s).

It is generally accepted that children do need both maternal and paternal care figures and role models in their lives. But the sad truth is that these are very often not their natural mothers and fathers, particularly in the case of adoption, which is of special relevance in the context of lesbian and gay parents. If a gay couple adopts a child, it is probably better for that child, emotionally and legally, for both partners to be legal parents – rather than creating an inequality, and increasing the potential for emotional turmoil in the event of a relationship break up, by allowing only one of the individuals to be legally regarded as the mother or father. And the point about encouraging gay adoption to take place – if it is going to take place at all – in the context of gay marriage and officially recognised gay family relationships is that this should also reinforce the extended family structures that can provide an additional source of caring maternal or paternal figures (in the shape of aunts, uncles, grandparents, etc.) to supplement the potential comparative absence of such figures from the child’s nuclear family.

One other observation that is worth making is that the argument in favour of the need for parental figures of both genders often presupposes that one or both of a child’s lesbian mothers, for instance, could not also serve as something of a model for fatherhood or masculinity. Gender should not be equated with anatomical sex. It is a commonly noted fact, for instance, that lesbian women often exhibit more conventionally masculine traits than typical straight women; and that gay men are often more overtly feminine or effeminate than their straight counterparts. So it is still possible for a child to learn about masculinity and femininity from same-sex parents. It is questionable, then, whether a child’s having two mothers or two fathers really does much long-term damage to their ability to develop their gender identity, sexuality and adult relationships in a ‘normal’ way; although the psychological impact of having same-sex parents should not be written off as insignificant. Maybe only time will tell what the long-term consequences will be.

Another question illustrating how society’s language to describe family relationships might need to evolve to reflect the changes I am advocating is how one would refer to ‘former’ spouses if a permanent relationship with a spouse and her / his family is deemed to be established in marriage. Common parlance would doubtless continue to employ terms such as ‘ex’ or ‘former’ to refer to previous spouses, even after any change in the legislation such as I am advocating. However, officially and logically, it might be better to designate these as ‘first’, ‘second’, etc. – e.g. a straight man who has married three times might refer to his previous wives as ‘my first wife’ and ‘my second wife’; and his third wife as ‘my current wife’.

You could argue that this is tantamount to sanctioning polygamy, in that it is implied that the conjugal relationship with previous spouses continues into subsequent marriages. And, in a sense, this is the case: a serial marrier of this sort would indeed be viewed as continuing to be related to his previous wives and their families. So the law would have to be explicit about the different types of relationship involved – family connection versus primary emotional / sexual relationship – and the rights and responsibilities in each. Determining a workable balance between the different relationships concerned would be part of the process of establishing the conditions and the settlement (financial and personal) for any marriage break up. It would in theory be possible for any such divorce and re-marriage arrangement to stipulate – within agreed limits – that wife No. 3 accepted that her husband could maintain an emotional or even sexual relationship with one or both of his previous wives, as the mother of his children for whom he continued to have a legal duty of care. Once you eradicate as part of the fundamental concept of marriage the idea that it involves an obligation for a permanent and exclusive sexual relationship between the spouses, there is no theoretical reason why situations of this sort should not arise if this was with the mutual consent of all the parties. Indeed, situations such as this do occur in real life today without the possibility to accommodate or negotiate them within the context of Christian-derived models for marriage; so that they frequently result in separation and divorce, which could be avoided if more realism about human behaviour and contemporary mores were built into the marriage model. All the same, the ‘current’ wife of such a serial marrier should have special privileges that preserve her right to reasonable treatment and for the promises made to her in marriage to be backed up by legal protection.

Is the husband in the above example in reality any more of a polygamist than under the current legislation, in which he would perhaps more accurately be described as a serial monogamist? The actual relationships and behaviour could well be identical in both contexts, even with respect to spouses maintaining sexual relationships with their previous spouses, as occasionally happens. The new model for marriage would recognise these realities while protecting the rights and security of all those affected by infidelity and, effectively, by polygamy.

Following on from the above observations, it would also be the case, for instance, that ‘former’ mothers-in-law or sons-in-law should now be called first, second, etc. mothers-in-law / sons-in-law. Familial relationship between non-genetically related uncles / aunts and nephews / nieces would also be viewed formally as continuing to exist after any divorce. Establishing in law the continuance of these types of relatedness could be important to ensure that strong relationships that already exist in the extended family are protected and promoted after a divorce has occurred. The same could be said, for instance, about relationships (and relatedness) between grandparents and non-genetically related grandchildren (e.g. in the case of adopted children or stepchildren). For clarity, it might be necessary to refer to someone as ‘my niece from my first marriage’ or as ‘my (step-) granddaughter from my son’s first marriage’, for example. Nieces and nephews themselves would not have the same dilemma, as ‘Auntie’ and ‘Uncle’ are often used for members of the extended family and for friends of the family, so there should normally be no need to explain the exact relationship in the terminology itself.

In summary, legal changes of this sort could have a positive impact on social practice, which is currently imprecise about what – if any – the continuing familial relationship is between divorced persons and their former spouses’ extended families. If the law stipulates that a continuing familial relationship exists, this creates the social conditions whereby personal relationships can also continue, where this is felt to be of mutual benefit to the parties concerned.

When it came to mapping out things like gay marriages and multiple marriages in family trees, these need not become significantly more complicated than they are already, as they mainly focus on genetic relationships in any case. More complex charting of relationships by marriage alongside genetic relationships could easily be added on. If the genetic relationship is not known – e.g. if a lesbian married couple deliberately decided to remain ignorant about which of the two women was the biological mother (for instance, in cases of in vitro fertilisation), and the identity of the biological father was also unknown – then the family tree could indicate both mothers as being the parents: instead of the usual pairing of father and mother as the next generational link, the tree would indicate two mothers. If the genetic mother is known, then the vertical line down the tree to the next generation could come from the biological mother, while a horizontal line indicating matrimony would still link the two women. In the same example, if the biological father were known, another type of horizontal line indicating parenthood could connect the genetic parents.

1.0.4 New processes for attempting to bring about reconciliation and for dissolving marriages would be required

Under the new reinforced model for civil marriages I am proposing, married couples should not be allowed to divorce unless a) they have been through a rigorous, formal procedure to determine whether their differences are irreconcilable, and b) a binding, enforceable legal agreement has been reached setting out the individuals’ continuing obligations towards their spouse, nuclear family (e.g. children) and even, in some instances, members of their spouse’s extended family; and also setting out their rights in relation to the same persons. These two processes would need to be carried out in a co-ordinated way, in that disputes over responsibilities, and over the use of wealth and property, are often central to marriage break-downs in the first place.

The type of process I would envisage is, in the first instance, a cooling off period of, say, at least two months following the decision by one or both partners to initiate divorce proceedings. This could be followed by anything from one to six months of consistent, verified attendance by both partners at counselling sessions provided by officially certified and monitored counsellors and organisations designed to effect a reconciliation, if possible, or to ascertain beyond doubt that a reconciliation is not possible.

The couple’s claims about their legal or moral rights in relation to money and property could also be discussed and assessed in a preliminary way as part of this formal process of counselling: one of the goals of the counsellor would be to try to disentangle any dispute over such material matters from the underlying emotional conflict. In this way, it might be possible to avoid further disputes over such matters if the ‘marriage-settlement’ process was taken forward to the next stage (winding up the marriage); or, indeed, if by resolving one side of the marital conflict (emotional or material), a resolution of the other aspect of the dispute could also be encouraged.

If, on the other hand, it is determined that no reconciliation of the married partners can be brought about, the second stage of the process would commence: determining a legal contract governing the divorce, which would set out explicitly the rights and responsibilities belonging to both parties consequent upon a divorce, and putting in place legal and financial measures to ensure that the terms of the contract are adhered to and enforced.

1.0.4.1 Aspects covered by the new form of divorce settlement could include:

· Financial arrangements: determining the extent and modality (e.g. one-off or continuous) of financial support, if any, to be provided by one of the divorcing spouses to the other and any dependants

· Custody and access: deciding whether one or both parents should be awarded custody of any children and stepchildren (including different arrangements for individual children, if desirable, most obviously in the case of children of previous marriages); and determining arrangements for access to the children for the other parent, including details such as the geographical distance that parents are allowed to live apart where this affects the provision of access; the amount and distribution (e.g. at weekends, holidays) of time the parent without custody is allowed or mandated to spend with their children; the particular needs, best interests and stated wishes of the children; etc.

· Details about continuing personal relationships between the parties to the divorce themselves, and between them and their extended families of which – under the new arrangements – both individuals continue to remain a part. This part of the settlement could provide a way to legally guarantee the right for continuing relationships and support between any children of the marriage and relatives such as grandparents, aunts and uncles. Provisions under this part of the ‘divorce contract’ could be divided between those that were legally binding and explicitly set out detailed practical arrangements (e.g. access to the children for grandparents); and those that represented a ‘Statement of Expectations and Intentions’, e.g. where one or both of the spouses expressed a wish to continue to maintain a meaningful friendship and working partnership with their spouse and her / his extended family after the divorce (whether shared children were involved or not). A statement of goodwill of this sort could be made even if the terms of the divorce meant the spouses no longer had either an automatic moral right or legal entitlement to a close relationship with their spouse beyond essential practicalities.

· Such a statement of expectations could also provide a formal framework for assessing the impact of any re-marriage on existing personal, material and sexual relationships. This is because part of the new arrangements for civil marriages would be that before a re-marriage could occur, there would need to be a review of the re-marrying person’s divorce settlement to see if any of its binding elements needed to be modified. This would require the consent of the re-marrying individual’s previous spouse. In addition, such a review would take into consideration the former spouse’s statement of expectations and intentions at the time of the divorce, in order to assist in drawing up a renewed statement taking the new marriage into account. This revised statement would attempt to reconcile, as much as possible, the expectations of the former and current spouses of the re-marrying person, so as to minimise conflicts and facilitate a good working relationship between them (necessary when mutual care for children is involved); and to ensure that, if the second marriage itself broke down, a formal statement existed setting out the expectations from the re-marriage that both parties had had when they contracted the marriage. The purpose of this would then be to streamline the process of determining the possibility of a reconciliation and (if that failed) the drawing up of a second divorce settlement.

A mutual statement of expectations could also be composed in advance of any first marriage, thereby serving as an informal alternative to a pre-nuptial agreement. (Couples could of course still conclude a formal pre-nuptial contract if they wished.) This would be a legally documented, but not necessarily narrowly enforceable, declaration concerning the economic, social and personal commitment that individuals were making to one another in their marriage. As such, it could help inform the reconciliation or divorce processes if the marriage did hit the rocks. The document could, for instance, spell out the couple’s expectations with respect to the exclusivity and permanence, or otherwise, of their sexual relationship as part of the more realistic, de-Christianised, but nonetheless legally and socially more responsible re-definition of the status of civil marriage I am advocating.

1.0.4.2 There should be tough legal provisions in place to enforce divorce settlements, if they are flouted, or to impose a settlement if one or both parties refuse to co-operate with the reconciliation and settlement process. The government has recently set out proposals along the lines I am suggesting, although I think the measures could go further. They could go as far as the facility to confiscate or freeze assets (not just withdraw money from bank accounts, as in the government's proposals), or the partial withholding or total withdrawal of custody rights if these were deemed to have been abused (e.g. if a parent who had been awarded custody on the basis that they remained a UK resident emigrated to Australia).

These tough legal penalties and incentives should have teeth. They are not something whose enforcement should be left to chance or to the ineffectual functioning of an anonymous bureaucracy such as the ill-fated Child Support Agency (CSA). Divorcing couples should have to disclose full details about their income and assets, as honestly and in as legally binding a way as they would when declaring these things for tax purposes. At the same time, the enforcement authority should have access to those assets and legal powers to freeze or confiscate them as a last resort to prevent divorcers from evading their responsibilities. Ultimately, some very stringent penalties should be available to enforce the decisions reached during the settlement process, including compulsory sales of assets and even imprisonment if the attempts to thwart a fair resolution of the financial and practical issues were considered to be especially serious or contemptuous.

1.0.4.3 Which agency or agencies would be involved in these processes of attempting to achieve a reconciliation, working to agree a divorce or separation settlement, and enforcement? Here again, my proposals diverge from those of the government. There would probably need to be a new national body to co-ordinate these tasks. But it would be advisable for these tasks to be run and financed at a local level, with only a loose national organisational framework to carry out necessary administrative and oversight tasks, and development of national strategy and policy. I envisage the new body as an offshoot of the current local register offices, co-ordinating the work of multiple service providers involved in the different processes, such as counsellors, lawyers, financial advisers and law-enforcement agencies. The work of this body could be financed largely – maybe exclusively – on the basis of fees paid by divorcing couples: perhaps on a percentage calculation linked to the value of the sums involved in the divorce settlement. There could be an initial upfront fee – by way of deposit – payable by the party suing for divorce.

The purpose of all these measures would not be to stigmatise divorce, as was the case in the past. But one objective they would be trying to achieve is to make couples think extra hard before going down the divorce route. Divorce should no longer be seen as an ‘easy option’ enabling parents to duck out of their responsibilities to children, partners or their wider family; or to provide an effortless transition to a new marriage. Indeed, if the reconciliation and settlement process resulted in a decision that, on balance, it was in the best material and emotional interests of all concerned that the marriage should not be dissolved, there might still be the possibility to negotiate some more flexible living and relationship arrangements as part of the mix. For instance, there could be an agreement that the wife and children of a husband who has been unfaithful could live in the marital home, while the husband would be free to live elsewhere with his new partner, so long as a new agreement on mutual rights and responsibilities (enshrined in a Statement of Expectations and Intentions) was adhered to.

1.0.4.4 What principles should be applied in assessing divorce settlements, especially the financial arrangements? In particular, should the principle of equality be systematically applied, i.e. the divorcing couple’s assets are simply divided into two equal portions? This is obviously a topical question as a result of recent legal cases. The spirit of the reforms that I am proposing here is that, wherever possible, the divorce settlement should aim to preserve a constructive relationship between divorcing individuals, particularly when the care of dependants is also involved. Simply splitting the couple’s material assets in half is not necessarily the best way to achieve this objective – whether this is because it provokes resentment on the part of a husband who sees his hard-won wealth being depleted by his ex-wife whom he sees – rightly or wrongly – as being motivated by greed; or whether, in a more general sense, this is because the focus is then directed towards material considerations rather than to the long-term emotional and practical consequences and needs of all concerned, not just the husband and wife.

So the new regulations should not just lazily enshrine the principle of equality, as if that would automatically compensate for any injustices that might be involved in the break down of the marital relationship itself, and for any harm suffered by grieving children. The outcome that is sought should be one of fairness: equity rather than equality of a type that is calibrated merely in mathematical, material terms. In the case of a family abandoned by a husband and father starting a new relationship, the aim should be to ensure that – wherever possible – the family does not suffer any disadvantages additional to those inherent to the family break up itself. This involves focusing on securing enough material assets so that the opportunities and the options in life that the wife and children had prior to the break up can be preserved or even enhanced, e.g. education choices for the children and opportunities for the wife (who may have sacrificed a career of her own for the sake of the husband and children) to make a fresh start in work and relationships.

To obtain a settlement of this sort does not necessarily involve splitting a husband’s wealth into two even halves. In fact, in cases where the husband is not especially wealthy, the consequence might be that more than half of his wealth was made over to his wife and children; so long as the husband’s ability to continue to develop his career and earning potential was not radically impaired. If this happened, it would also be unjust and ultimately counter-productive, as it would lessen the potential for the husband to a) improve his personal circumstances, and b) pass on some of the benefits to his first family as a voluntary gesture of care and goodwill, as much of the goodwill would have been eroded by the original settlement. This touches upon one potential flaw in the argument that the simplest and most practical alternative is always just to split a separating spouse’s wealth in two: this can damage the spouse’s ability and motivation to grow his or her wealth still further, which could then be of benefit to all concerned.

In addition, sanctioning the notion that jilted wives (or husbands) should automatically be entitled to half of their treacherous spouses’ assets could mean giving even more of a green light to greed as a motivation for getting married in the first place, and then for seeking a divorce. The point of the reforms that are being advocated here is that such motivations should not be rewarded or promoted by the system; that marriage should represent a serious commitment and set of obligations, which the divorce settlement is an attempt to uphold and fulfil.

In reality, however, cases where fabulous sums of money are in dispute are the exception rather than the rule; and the financial-settlement process would simply have to try to find the best compromise deal ensuring as fair a re-distribution of the family’s wealth as possible in the light of the needs of all concerned. Equally, it is in keeping with the principle of fairness that husbands who have been keeping their wives in a state of some luxury should expect to continue to have to do so, to a certain extent. The wives would be deemed to have a reasonable expectation of being looked after in this way, based on the commitment that was made to them through marriage, perhaps backed up by a Statement of Intentions and Expectations on the part of their then fiancé. As has been stated, a divorce should not be a way for husbands (or wives) to back out of their responsibilities, or for women (or men) to dig for gold.

1.1 Summary: marriage

Above, I have set out some new concepts, guidelines and suggested legislative changes relating to secular marriage in the UK. The core principles underlying these suggestions could be summarised as follows:

· Strengthening the cultural meaning and institutional support that is given to marriage

· Affirming marriage as a serious and – in its effects, at least – permanent commitment of two people to each other and to their extended families

· Making marriage fairer: in its availability to persons of any sexual orientation; in the insistence on the rights and needs of children and of the extended family in and beyond marriage; and in the resolution of problems through divorce or alternative arrangements

· Stripping marriage of some of the inherited Christian-derived expectations that it necessarily involves a permanent and exclusive sexual relationship between the spouses; and removing from it much of the associated guilt and blame when things go wrong and spouses stray. The aim of this is to focus on the continuing responsibilities that mature adult individuals have towards their partners, who have previously committed their lives and futures to them.

Part two to follow: new civil partnership arrangements.