Whatever our sexual preference, we all like our facts straight. What are we to make, therefore, of the mutual accusations concerning the Bill legalising gay marriage?
The Opposition has declared it will vote in favour of the bill. But that hasn’t stopped some members from accusing the government of using the Bill as a Trojan horse.
One charge is that the Bill is paving the way for the legalisation of surrogacy and egg and sperm donation. Another is that, under the guise of gender-neutral language, the bill reduces the rights of heterosexual married couples and seeks to engineer cultural change.
The government has accused the critics of being against real equality in marital status. It says they would really like to keep gay couples separate from the mainstream.
Disentangled, the issues break down into seven basic questions. The facts on their own will not settle the political difference but they should help illuminate your judgement.
(1) Will legalising same-sex marriages – irrespective of the law’s wording – change anything we have at present?
There is no evidence that it will. It will not add to the rights and duties of gay civil unions.
Will it have an impact on heterosexual marriage? The issue has been studied with reference to the Netherlands and Scandinavia. There, after the introduction of gay marriage, the previous marriage trends continued as they did before.
If there was any impact, it didn’t change behaviour.
Did it change the meaning of marriage? This is more contentious. To say it must have is to assume that the passing of the law is a cause, which must have an effect.
But, in Europe, gay marriage laws have been passed when polls showed the majority was already in their favour. The passing of those laws is probably better understood as the effect: of an understanding of marriage that had already changed.
As Angela Merkel’s vote against gay marriage last week showed, some of the most respectable people are against it. But if you’re going to say legalising gay marriage will cause anything, it’s also quite respectable to point to actual evidence.
(2) How does the government’s proposed Bill compare with that proposed by other governments?
Simplifying crudely, there are three models of gay marriage laws.
England and Wales have a separate law, which gives same-sex couples almost identical rights and duties as heterosexual couples, but with some distinctions (for example, non-consummation is not considered grounds for annulment).
The other two models both assimilate marriage for same-sex couples to the existing marriage law.
How long will it be before it’s claimed that inequality requires remedy?
Some, like the law passed in Spain in 2004, are minimalist. They simply add that the existing law will apply to same-sex couples as well.
Others, like the laws in France (2013) and Luxembourg (2015) are maximalist. They specify in detail how the wording of various provisions is to be changed.
The marriage equality Bill in Malta resembles that of France and Luxembourg in terms of content.
In terms of speed, however, the Maltese bill is proceeding much faster.
In France, the Bill was first presented in November 2012 and it was not until April that the National Assembly finally passed it. Luxembourg’s text had a four-month passage. The UK, despite long debate, held a half-year national consultation with civil society.
Those who say the Maltese Bill is being rushed have a point.
(3) Does the Maltese government have a reason for preferring the maximalist model of specifying changes in wording?
Yes. It tried the minimalist model with the civil unions law. It found that in practice this left a number of ambiguities that needed resolution or interpretation later.
So it’s proposing, for example, to replace terms like ‘husband’ and ‘wife’ with ‘spouse’, and ‘father’ and ‘mother’ with ‘parent’. These changes affect not just the law’s wording but also official forms like marriage and birth certificates.
But the government’s critics are stating that the government is going beyond resolving ambiguity. It is imposing uniformity on people who don’t need it. Instead of replacing the old terms, it could simply add the new ones, thus giving people the choice of how they are to be called.
(4) Is there good reason to think that the removal of the old terms is a sign of cultural engineering or political correctness gone mad?
No. The same kind of language is used in (say) the laws of France and Luxembourg. In neither case, was this issue raised. You’d think someone would have noticed.
In both cases, the new law was reviewed by a higher body: the Constitutional Court in France and the Council of State in Luxembourg. In both cases the law was found to conform with the respective country’s Constitution. No talk about people’s rights to be called ‘father’ or ‘mother’ being taken away.
There is no reason to think that the changes in the law will have a social and cultural impact. Our ID cards identify us with a number – but we don’t act and talk as though we are numbers. Our current law makes no mention of ‘mummy’ and ‘daddy’ – yet children continue to call their parents by those names.
PN MP David Agius has said the law opens the way for Mother’s Day to be abolished on grounds of discrimination. He has cited no legal expert. France and Luxembourg continue to celebrate Mother’s Day.
(5) Why, then, does the law contain monstrous circumlocutions such as ‘the parent who gave birth to the child’ instead of plain old ‘mother’?
The law must cater for all cases, even rare ones. It is possible for someone who is legally male (through the gender identity law) to be biologically female and give birth.
The consequences of such situations make me shudder. But the situations exist independently of the marriage equality law. It’s not the law that is creating them. They would still be there (rarely) even if the law does not change.
(6) Is the government correct to accuse those who want to retain the traditional terms (‘husband’, ‘wife’, etc.) of being against real equality?
No. You could have the same law, pursuing the same goal of marriage equality, and offer people (including same-sex couples) the option of referring to themselves as ‘husband’, ‘wife’, etc. Many gay people are quite proud to refer to their same-sex spouse as ‘my husband’ or ‘my wife’.
So certificates could be provided with a menu of options before being printed. But that may require the bureaucrat to ask questions that may annoy the ordinary applicant.
Given the varied sexual landscape, how is the official to know – really be sure, since an official document is at stake – that I, despite my impossibly distinguished virile credentials (balding, portly, etc.), am legally a man? Since nothing can be taken for granted, how will she be sure I’m claiming to be the father, not the mother?
Only by asking. Each time. I think I’d rather she automatically ticked me off as ‘spouse’ and ‘parent’.
Once more, it’s not the law that’s creating this mayhem. The law is just trying to deal with it.
(7) Finally, is there reason to think that this law might be easing the way for the introduction of surrogacy and egg and sperm donation?
Yes. The government denies it. But it’s clear the draft Bill is catering for instances where – at the very least – surrogacy and gamete donation are obtained abroad. That is, the Bill is premised on legally recognising what is unlawful in Malta.
How long will it be before it’s claimed that inequality requires remedy?
It’s clear that this is an issue that requires separate debate. It cannot just be slid in.
Some of the issues being raised are grave and important. Others are not. You can continue to recommend Manzoni’s I Promessi Sposi and remain above suspicion of propagating a sinister gender agenda.
ranierfsadni@europe.com