Sacred Spaces, Sacred Words: Religion and Same‐sex Marriage in England and Wales

DOIhttp://doi.org/10.1111/jols.12024
AuthorRobert M. Vanderbeck,Paul Johnson
Publication Date01 Jun 2017
JOURNAL OF LAW AND SOCIETY
VOLUME 44, NUMBER 2, JUNE 2017
ISSN: 0263-323X, pp. 228±54
Sacred Spaces, Sacred Words: Religion and Same-sex
Marriage in England and Wales
Paul Johnson* and Robert M. Vanderbeck**
This article provides an analysis of the ways in which the spatial and
illocutionary requirements of English marriage law ± which regulate
the spaces in which marriages may be solemnized and the words the
parties being married must speak ± have been used to maintain
distinctions between same-sex and opposite-sex couples. It shows how
religious opponents of same-sex partnership recognition have relied
upon historically entrenched differences between the spatial and
illocutionary aspects of `civil marriage' and `religious marriage' to
argue in favour of the enactment of law that enables organized religions
to exclude same-sex couples from religious premises and ceremonies
that are open to opposite-sex couples for the purpose of solemnizing
marriage. It extends recent international debates about how faith-based
discrimination against same-sex couples is accommodated by
legislators and legitimized by law, and concludes with a consideration
of how English law could be amended to end discrimination based on
sexual orientation.
INTRODUCTION
During the passage of the Civil Partnership Act 2004 and the Marriage
(Same Sex Couples) Act 2013, members of the United Kingdom Parliament
debated not only whether same-sex couples should be able to have their
relationships legally recognized but also the specific means by which these
relationships should be registered or solemnized. A recurring theme of these
debates concerned the types of spaces in which same-sex couples should or
should not be legally permitted to register a civil partnership or solemnize a
228
*Department of Sociology, University of York, Heslington, York YO10 5DD,
England
paul.johnson@york.ac.uk
** School of Geography, University of Leeds, Leeds LS2 9JT, England
r.vanderbeck@leeds.ac.uk
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
marriage and, when doing so, the nature of the words that must or must not
be spoken. These spatial and illocutionary aspects of law
1
have been and
continue to be important because they provide the primary means by which
differences between same-sex and opposite-sex couples are maintained.
Most crucially, these aspects of law enable organized religions to exclude
same-sex couples from spaces and practices that are open to opposite-sex
couples for the purpose of solemnizing marriage.
This article examines how the spatial and illocutionary aspects of mar-
riage law have been utilized by those with a religious hostility to homo-
sexuality to influence the shape of English statute law relating to same-sex
civil partnership and marriage in ways that enable discrimination against
same-sex couples to persist.
2
We argue that the primary reason that
religious-based arguments have been able to successfully influence the law,
within a legislative environment that many argue is characterized by the
progressive marginalization of religion,
3
is because such arguments rely
upon historically entrenched distinctions between the spatial and illocu-
tionary requirements for solemnizing `civil marriage' and `religious mar-
riage'.
4
By invoking these historical distinctions between secular and sacred
marriage and presenting them as seemingly incontrovertible and unassail-
able, religious opponents of same-sex partnership recognition have been able
to exercise significant authority during the passage of successive legislation.
We begin the article therefore with an overview of these historical aspects of
English law, before going on to show how they have been systematically
229
1 We use the term `illocutionary' in respect of those aspects of marriage law that
require an individual to perform specific `speech acts' during a marriage ceremony
in order to create a contract of marriage. For a general discussion of illocutionary
acts in the context of marriage law, see L.H. Schwartzman, Challenging Liberalism:
Feminism as Political Critique (2006).
2 We restrict our analysis to statute law extending to England and Wales in order to
allow for an in-depth examination of marriage law in one jurisdiction of the United
Kingdom. For a relevant discussion in respect of Scotland, see K. Norrie, `Civil
partnership in Scotland 2004±2014, and beyond' in From Civil Partnership to Same-
Sex Marriage: Interdisciplinary Reflections, eds. N. Barker and D. Monk (2015).
3 This form of argument is critically discussed, for example, in P. Johnson and R.M.
Vanderbeck, Law, Religion and Homosexuality (2014).
4 As we explain below, the distinction between `civil' and `religious' marriage
denotes only a difference in the mode by which a marriage is solemnized rather than
a difference in the legal status of the marriage contract itself. The English courts
have long held that, `[t]o the law there is only one contract of marriage. It may be
solemnized in a church by the parish clergyman with the rites of the Church of
England, the parties thereto being persons holding the tenets of that Church, or it
may be made before a registrar (who is a purely civil official), the parties thereto
being of no religious belief whatever. The result is one and the same in every respect
known to the law' (Rv. Dibdin [1910] P 57, Fletcher Moulton LJ, 114). The fact that
a marriage solemnized by means of a civil or religious ceremony results in the same
legal contract has been used by religious opponents of same-sex marriage to contest
proposals to allow same-sex couples access to `civil marriage' (see n. 96 below).
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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