Substantive Equality and the Extension of Marriage

AuthorLawrie Scott-McFarlane
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
samesex marriages This is a peculiarly strong and specific form of protection for
example the idea that such protectionwould be implemented for celebrants who refused
to solemnise interracial or interreligious marriages seems ludicrous Under both Acts
religious groups must optinto marriage of samesex couples this allows them not only
to refuse but to symbolically remain outside of the samesex regime altogether while
remaining within the legal marriage regime for mixedsex couples Such explicit
protections emphasise the lasting symbolic importance of marriage as a legal institution
to traditional and religious groups An indepth 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 mixedsex couples
)n England a similar result is provided for with regard to nonconsummation 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 mixedsex partners Samesex 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 mixedsex relationship but this was removed
in the Scottish Acts passage through parliament and the defence is now abolished
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 samesex 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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