Substantive Equality and the Extension of Marriage
| Author | Lawrie Scott-McFarlane |
| Pages | 1-11 |
2
There are provisions in both jurisdictions that relate specifically to the role of celebrants
and the participation of religious groups This was a major source of controversy during
the debates )ndividual celebrants are extensively protected from having to solemnise
samesex marriages This is a peculiarly strong and specific form of protection for
example the idea that such protection would be implemented for celebrants who refused
to solemnise interracial or interreligious marriages seems ludicrous Under both Acts
religious groups must optin to marriage of samesex couples this allows them not only
to refuse but to symbolically remain outside of the samesex regime altogether while
remaining within the legal marriage regime for mixedsex couples Such explicit
protections emphasise the lasting symbolic importance of marriage as a legal institution
to traditional and religious groups An indepth analyses of celebrants is beyond the scope
of the present discussion
Another major area of differential treatment relates to sexual conduct )n Scotland the
concept of voidability through incurable impotency can apply only to mixedsex couples
)n England a similar result is provided for with regard to nonconsummation Adultery is
also unmodified the legislation clarifies that the definition of adultery remains as it was
prior to the extension of marriage An extramarital relationship can only be classed as
adulterous if the affair included sexual intercourse that is penile penetration of the
vagina which can only be carried out between mixedsex partners Samesex couples can
still commit adultery but only if they have sexual intercourse with someone of the
opposite sex Finally in Scotland there was a provision that made it so the special defence
relating to reset only applied to the wife in a mixedsex relationship but this was removed
in the Scottish Acts passage through parliament and the defence is now abolished
altogether
There are also several areas other than differential treatment but the most significant
area for our purposes are the provisions relating to sexual conduct and the fact that they
have not been updated for samesex couples These provisions will have a lasting effect on
all married and reflect on our expectations and perceptions on what marriage is
The role of marriage
(aving established the legal framework it is now possible to explore the wider legal and
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