Live as you wish, but the collective civil partnership is unlikely to become a reality 

In my last post I argued that the debate over gay marriage could be resolved if the government abandoned all legislation concerning marriage and restricted itself to the gender neutral ‘civil partnership.’ Since I wrote it the Catholic Church in Scotland went on the offensive and, to my mind, simply confirmed that a secular government should not involve itself with the definition of marriage. Arbitrating moral disputes regarding what is and is not 'marriage' is not the business of the state. If we simply legislated for gender-neutral civil partnerships people could then make use of this framework in whatever way they saw fit. 

Of course, homophobic religions would continue to discriminate on the basis of gender and sexuality (and thereby be exposed for what they are) whilst more ‘progressive’ religions would continue on the path some of them are already on and others have largely concluded. Those who arranged their weddings in locations outside of religious settings would be able to conduct their ceremonies precisely as they pleased. As opposed to the current ridiculous state of affairs where such things are banned they would be able to sing hymns or having particular readings that make mention of god or any other religious theme. Our cultural histories belong to all of us and should not be the protected property of one aspect of contemporary society only to be used as they see fit. 

In short, once the state ceases to ‘protect’ religious marriage by recasting legislation in terms of civil partnership people will be free to make whatever arrangements they like. Of course one of the arrangements people might freely choose to make is, as discussed in a CiF article yesterday, to ‘marry’ more than one person. Whilst (serial) monogamy is the ‘official’ or ‘public’ norm of contemporary times there is good reason to think that, unofficially, monogamy is not and has never been all that ‘normal.’ Furthermore it is obvious that as a culturally given format for sexual relationships monogamous romantic love could, counterfactually, and is, in contemporary and historical cultures, be differently conceived or altogether reconceived. And, of course, plenty of people do ‘live differently’. 

However the diversity of ways in which people choose to live their lives, their official and unofficial cultural forms, are not all to be considered the particular concern of the state. There is no imperative for the state to legislate for or against any sexual or emotional cultural that involves consenting adults. In fact there is no moral necessity behind states legislating for civil partnerships. They do so because citizens wish them to do so and because it is economically sensible for them to do so. Arguing for the state to legislate for marriage between multiple individuals fails to grasp the point of why the state is interested in marriage in the first place. The law cares not for our romantic entanglements, what it 'cares' for are the economic implications of romantic entanglements. The legal institution of marriage, the institution I would like to see recast in terms of civil partnership, is predominantly a financial institution that renders the interests and capital of two people their collective, rather than individual, property. For those who intend to live their lives together it is, quite simply, an easy way to arrange ones affairs. You are taxed individually but your capital is owned ‘collectively’ and if one of you dies there are no death duties to pay, as you both owned everything anyway. 

I am, of course, being somewhat flippant. Particularly when there are children involved there is a little more to the legal institution of marriage civil partnership and it makes sense for couples to arrange their affairs in this way. But this is precisely the point: the civil partnership is but one way in which we can arrange our affairs. It is a common social form and one that the law seeks to support. In doing so it is unavoidable that it gives greater definition to this common social form and thereby normatively reinforces its structure. My argument that it the law should recognise this social form in a gender-neutral manner is achievable. That it should do so in a normatively, i.e. morally, neutral manner is only minimally achievable. Civil partnerships are about couples and not about triads and in that sense it is, unavoidable, a moral institution in the broad sense of the term. 

The question then becomes whether and under what conditions the state would wish to provide legal and economic support the civil partnering of multiple individuals. The answer is, of course, it has little reason to do so at the present time. At our behest the law provides a supporting structure for the ‘life partnership’ of two people precisely because it is the culturally normative form of our sexual relationships. Whilst my argument should be taken as implying that people are free to live their sexual and emotional lives as they see fit it we should not seek state sanction for whatever arrangement du jour we happen to come up with. Furthermore once you extend state recognition, sanction, and benefits to novel sexual relationships involving multiple individuals it becomes difficult to see why such recognition should be restricted to sexual relationships at all. There are plenty of ways in which we might choose to live collectively some of which involve sex and some of which do not. Why would some sets of people who are in a sexual and emotional relationship be entitled to legal recognition whilst others who choose live their lives together but whose relationship is merely emotional be denied the same legal and economic benefits? Furthermore, what sort of eligibility test might be applied? 

Frankly the law does not, and should not, care about the ways we choose to lead our lives. If, alongside other cultural changes, the freedom granted by building our relationships around the relatively neutral structure of the civil partnership results in there being new relationship formats there may be argument for legally instituting some form of state recognition. In the mean time people should consider themselves free to carry out whatever ceremonial and day-to-day practices they see fit. Any legal institutionalisation would only ever be justified by (and reflect) an economic argument anyway. Perhaps it would be an argument concerning economic equality but it would, nevertheless, be economic at root. What law is not is a tool for imagining, and thereby creating, a morally utopian (which increasingly means morally neutral) emotional and sexual society. Unsurprisingly, there is no such thing. 

We are locked into a circular relationship with law, a major structural aspect of modern societies. However it is us, and the way in which we choose to (re)form our cultural practices, that should lead the development of law and not the other way around. To think otherwise, as so many do, mistakes law for a utopian morality – a Kantian Kingdom of Ends - instead of recognising it as the fallible cultural tool of fallible cultural beings.