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MEDIA RELEASE immediate circulation
Roman Catholic Caucus
Lesbian & Gay Christian Movement
PO Box 24632
London E9 6XF
29 September 2003
Lesbian and gay Catholics give thumbs-up to UK civil partnerships proposals
The Roman Catholic Caucus of the Lesbian & Gay Christian Movement has made public its submission on civil partnerships to the UK Government's Department for Trade & Industry Women and Equality Unit. The full text of the ten-page submission follows.
The RC Caucus Steering Group drew on members' experience and expertise as well as that of external experts, including lawyers, theologians and psychotherapy specialists, in drawing up the submission. In overwhelmingly welcoming the proposals, the Catholic Caucus firmly rejects the recent Vatican document condemning such legislative moves. Nevertheless, the Caucus submission roots itself within " the best traditions of Catholic moral theology and social justice teaching, as well as the development of theological reflection and pastoral practice within the Roman Catholic Church."
While welcoming the UK Government's civil partnerships proposals it is not uncritical, and outlines a number of areas where further clarity and consideration is required before any Civil Partnerships Bill comes before Parliament, these include:
mental health implications and need to provide social and emotional support, including availability of appropriate relationships counselling for same-sex couples;
the need for closer and more transparent consistency with other legislation;
the removal of anomalies relating to immigration issues, especially for same-sex partners coming from a non-EU state, including cohabitation rules;
the need to match grounds for dissolution of civil partnerships so that they are consistent with those for marriage and divorce;
greater clarity on capacity for consent to civil partnerships registration, including a right of appeal for young people where parental or guardian support might be refused;
the submission also highlights inequalities in inheritance tax, receipt of benefits and pensions.
The Roman Catholic Caucus also looks forward to the response from the Catholic Bishops' Conference of England and Wales Working Group on Civil Partnerships, particularly in the light of the recent Vatican document.
Further details: Martin Pendergast - 020 8986 0807 - email: lgcm_rccaucus@hotmail.com
Roman Catholic Caucus
Lesbian & Gay Christian Movement
PO Box 24632
London E9 6XF
Reference: Civil Partnership: A framework for the legal recognition of same-sex couples, pg.15, Women & Equality Unit, Department for Trade & Industry (DTI), June 2003.
A Submission to the Women & Equality Unit Department of Trade & Industry on
CIVIL PARTNERSHIPS
- a framework for the legal recognition of same-sex couples
September 2003
1. Introduction
1.1. The Roman Catholic Caucus of the Lesbian and Gay Christian Movement (RCC- LGCM) was founded in 1988 with a national and international membership. Its members affirm the Lesbian and Gay Christian Movement's Statement of Conviction:
" human sexuality in all its richness is a gift of God gladly to be accepted, enjoyed and honoured ... It is entirely compatible with the Christian faith not only to love another person of the same sex, but also to express that love in a personal, sexual relationship."
1.2. Our membership is composed of women and men, lay people, priests and members of religious communities. We welcome all who identify themselves as Roman Catholic regardless of their relationship with the institutional Church. We welcome lesbian, gay, bisexual, transgendered and heterosexual people who wish to join together in furthering our aims:
- to provide support and information to Roman Catholic members of LGCM and others;
- to provide opportunities for members to integrate and grow in their experience of faith and sexuality;
- to challenge the Vatican's teaching on homosexuality and its treatment of lesbian, gay, bisexual and transgendered people.
1.3 We intend this submission to provide a response from Catholics who do not feel
constrained by officially declared hierarchical positions on the subject of civil partnerships. We root the following submission within the best traditions of Catholic moral theology and social justice teaching, as well as the development of theological reflection and pastoral practice within the Roman Catholic Church.
2. Principles of Catholic Teaching on Sexual Ethics and Social Justice
2.1 Catholic theologians and bishops differentiate the Church's theology of chastity from its theology of justice. In the former, the Catholic theological position on chastity prohibits all sexual activity outside of those non-contraceptive relations between a husband and wife. It thus opposes the sexual activity of all divorced heterosexual persons, all unmarried heterosexual persons, and all gay and lesbian persons, as well as any contraceptive activity of sacramentally married husbands and wives.
2.2 When it comes to the social lives of all these persons - both hetero- and homosexual - of whose sexual activity it disapproves, Catholic teaching does not endorse the unequal or discriminatory treatment of any of these people. Thus it does not argue against just and equitable treatment of lesbian and gay people. On the contrary, it obliges society to recognise that all these persons retain their inherent dignity as human persons.1
3. Values-base of Civil Partnership Proposals
3.1 Catholics are helped in their commitment to promoting the common good by their traditional understanding and practice of the great moral values and virtues. These might be expressed in the following terms: truth/reality; justice/equity; freedom/responsibility; harmony/social inclusion. The responsibility to promote a more just society may be systematically analysed in terms of such values and virtues which, in many respects, enjoy a longer and wider acceptance than any specifically Catholic, or even Christian tradition.
3.2 We recognise that the Government's proposals seek to express these values insofar as they pertain to same-sex relationships and the status of lesbian and gay people within wider society. As such they provide a framework for authentically human, and we would add, Christian behaviour, as well as the promotion of authentic human community. We therefore reject any suggestion that these proposals constitute an assault upon the institutions of marriage and family.
4. Specific Comments
4.1 Mental Health Implications
The giving of legal recognition to same-sex relationships would help in developing social and emotional support to lesbian and gay people.
4.1.1 Lesbian and gay people who have grown up in families, schools, faith communities and a society that does not value them, may be more prone, than heterosexual people, to higher levels of psychological distress and possibly mental illness.2 We are particularly concerned about the corrosive impact of current official Catholic teaching on homosexuality and its capacity to hinder the psychological development of gay and lesbian people.3
4.1.2 Being in a stable, committed and loving relationship is recognised as being one of the key components of good mental health.4 Having such relationships recognised by the state will further strengthen the partners in them to weather the inevitable storms that arise in any long-term commitment between human beings. By having the state give official recognition to same-sex partnerships, wider social approval from families, friends, peers, work colleagues and members of faith communities will be encouraged. The network of support surrounding a same-sex couple's relationship/partnership is an important stabilising feature.5
4.1.3 As the Government offers grant support to agencies such as 'Marriage Care' and 'Relate', so it needs to consider the support of same-sex relationships in a similar manner. This could be by extending the scope of such agencies' focus to explicitly include same-sex couples in their remit, and/or by supporting dedicated couple-counselling for same-sex couples. 'Relate' already includes same-sex couple work in its training for general couple-counselling and for more specialist psycho-sexual therapy. For agencies to do this work, new and specialist training resources will need to be made available so as to be clinically effective. The Catholic-based 'Marriage Care' already provides relationships counselling to individuals and couples, regardless of gender or sexual orientation. The work of these and other such agencies is not widely known, but is a vital existing resource. It is clear from recent research amongst counsellors and psychotherapists that there is a need for clinicians working with lesbian, gay, bisexual and transgendered people (lgbt) to have specialist input in their training and supervision, to make the case/clinical work they undertake clinically effective and non-damaging.6
4.1.4 Government Departments and Local Authority bodies and Health Commissioning agencies should ensure that such provision is routinely available in statutorily-funded counselling services, and that appropriate and professionally recognised quality controls for such services are in place. Thus mainstreamed provision can be complemented by the work of specialised lgbt agencies.
4.2 Consistency with Other Statutory Instruments
It is obvious that any legislation on civil partnerships should not conflict with primary or secondary legislation, especially the Human Rights Act, the Sexual Offences Act and the Equality of Employment Act and Regulations.
4.2.1 We believe that issues of consent to civil partnership registration are perhaps more complex than they may at first appear. While we appreciate that the Government's intention is not to confuse civil partnership status with marriage, we suggest that there is a need for further clarity regarding the nature of the object of such consent. This is crucial if there is to be full and proper informed consent. Recognising that in principle the law on marriage concerns questions of status, with rules peculiar to them now primarily in the field of family law, it appears that the Government is keen to emphasise that same-sex civil partnerships proposals are not marriage (and not about 'status'), but rather akin to contractual issues. We would hope that this is no more than a tactical approach to avoid overt conflict with those who think that the institution of marriage derives its purity, inter alia, from its exclusion of same- sex relationships, rather than a serious attempt to create a legal distinction between heterosexual marriage and same-sex partnership contracts. For people of faith and others, their commitment and consent will involve moral and spiritual, as well as legal aspects, sometimes expressed through acts of public ritual or worship.
4.2.2 We hold the view than an essential difference between marriage and a contract is that the latter is normally a totally private matter between the parties to it, unless it specifically includes third parties. No one other than a party to a contract can enforce it, subject to certain limited exceptions. This means that there is no recognition of the arrangement by the state or by third parties. As the law currently stands, there is no reason why a same-sex couple should not enter into a contract to live together, share expenses and income, etc; indeed many have undertaken such commitments in the absence of any publicly recognised arrangements. It is simply that such arrangements could be terminated by mutual consent at any time, the remedy for breach would be a cash sum payable as damages and, crucially, the state would not recognise the contract of relationship. Legal judgements on cases coming before UK and European courts in recent years have sometimes been ambiguous and occasionally contradictory in terms of defining the familial aspect of same-sex relationships. We read the current proposals as an attempt to move away from the notion that a same-sex relationship is solely an arrangement between the two parties, thus now providing it with a status whereby third parties are required to recognise it. This is evident from the proposal that where a couple who have registered their relationship become estranged, they will then have to obtain a court order dissolving the partnership before either can enter into a further registered partnership.
4.2.3 If as seems probable, civil partnership matters in Scotland and possibly Northern Ireland are remitted to the Westminster Parliament to ensure a balance across the United Kingdom, there will need to be further clarity on the capacity of those entering into registered civil partnerships, including the requirement for the written consent of parents/guardians pertaining to sixteen and seventeen year olds. Although it is a requirement for marriage in England and Wales, written parental/guardian consent is not so in Scotland (e.g. 'Gretna Green marriages'), and there is a different age of consent in Northern Ireland, thus sharing consistency with the Republic of Ireland. We would have concern that opposition to registered partnerships for those in the age bracket might be based upon erroneous religious perceptions on the part of those exercising such authority over young people, including parents/guardians and public care agencies. There should be provision for young people, with appropriate professional support, to make legal appeal in the respect of any refusal of consent.
4.2.4 It also appears to us that the issue of consent for people with learning disabilities needs to be addressed in ways consistent with the manner in which such matters are dealt with, for example, in the Sexual Offences Bill.
4.2.5 We have some concerns that the proposed public nature of the Register, if full names are to be detailed, could render members of faith communities vulnerable to an invasion of privacy, possibly in conflict with the Human Rights Act, and inappropriate scrutiny, given the Government's late-hour amendment to the Equality of Employment (Sexual Orientation) Regulations, offering an exemption to religious bodies. If suspected of being lesbian or gay, such employees could be traced by name on the Civil Partnerships Register resulting in their possible dismissal from work.
4.3 Immigration Issues
The civil partnership proposals prompt questions and raise anomalies in current law and practice relating to same-sex partners, including those coming to this country from a non-EU state.
4.3.1 The Roman Catholic Caucus welcomes the proposal that a same-sex couple will not be required to show two years cohabitation prior to an application for residence for the non-EU partner. The proposal is clearly intended to remove the considerable hardship caused by the current arrangement, as well as to treat registered civil partners in a manner which is equivalent to the treatment of a married couple.
4.3.2 We further note, however, that there is no corresponding proposal to reduce the two year temporary residence to one years once the application has been granted. A one year temporary residence, prior to the final application for indefinite residence, would place registered civil partners on a par with married couples. Given that delay is the enemy of justice, there seems to be no reason to maintain a distinction between married couples and same-sex couples, once civil partnership registration has been introduced. Effectively, a discrimination against same-sex couples will be built into the rules.
4.3.3 The delay in obtaining permanent residence for the non-EU/UK partner leads to a corresponding delay in obtaining rights to apply for British citizenship. Citizenship is particularly important for those people who are nationals of countries which are subject to visa requirements for travel within Europe. It is harder to obtain a visa to travel within Europe for the same sex partner of a British or other EU national than it is for the spouse of an EU national because most states do not recognise a same sex partner as a family member. Thus people in this position are subjected to visa fees from which they would be exempt if they were married to an EU citizen, and as such are assessed for a visa as if they were single. A longer period before citizenship can be obtained means both a longer period having to apply for visas to travel within Europe, and a more difficult process in making such applications. We are therefore disappointed not to see the immigration rules being put exactly on a par with the rules as they apply to married couples.
4.3.4 A further gap in the draft proposals relates to the status of a non-EU national who lives abroad and wishes to register a civil partnership with a British or EU citizen. Once the intention to form the partnership is made, it will be very difficult to obtain a visa to travel to the UK, since the requirements for other visas may not be met. For example, a tourist visa would not be available because the applicant would not have the necessary intention to return to his/ her country of origin. A heterosexual couple in this position is free to marry in the country of origin of the non-UK/EU national, and then apply for residence on the basis of marriage. However, many countries will have no provision for the registration of same-sex partnerships and that option will not be available to them. The solution should be an equivalent form of 'fiance visa', permitting a non-UK/EU national to apply for a visa specifically to enter the UK in order to register the partnership with a view to seeking permanent residence thereafter.
4.3.5 We are further disappointed to see no provision for a change to the law of nationality. Currently, the spouse of a British citizen may apply for British citizenship sooner than a single person and the process is slightly less complex. For example, under current rules, the spouse of a British citizen does not need to have a reference stating that she/he speaks 'sufficient English', whereas a same-sex partner of a British citizen must provide such a reference. Again, given that the purpose of civil partnership registration is to create a legal status similar to that of a married couple, there appears to be no reason why the nationality law should not be amended so as to treat a registered partner of a British citizen in the same way as a spouse of a British citizen.
4.4 Pensions
We welcome the steps being taken, in both law and practice, to remove inequalities in this area.
4.4.1 We consider the attempts to remove discrimination on grounds of sexual orientation to be trivial compared with the problems of eliminating sex/gender discrimination inherent within pensions legislation. We urge Government to expedite this process.
4.5 Next of Kin Rights
We welcome the good intentions in these proposals to eliminate unnecessary pain and hurt to same-sex partners.
4.5.1 We urge Government to consider a legal redefinition of 'next of kin' so as to strengthen and hasten the culture change which is evident in some, but not all, public services in this regard.
4.6 Dissolution of Registered Partnerships
4.6.1 In relation to the provisions dealing with the dissolution of registered partnerships, we note that the grounds for dissolution do not match exactly the grounds for divorce under existing law. In particular, there is no provision for dissolution on grounds of adultery. This is anomalous. Although adultery is legally defined as heterosexual activity, it is not by any means unknown for a same-sex relationship to end because of heterosexual infidelity by one partner. It might also be worth considering including a provision for the dissolution of the partnership on the grounds of a concept based on adultery but covering infidelity with a person of either sex. The aim would be to have the grounds for dissolution of a partnership reflect as closely as possible the grounds for divorce so as to ensure parity of treatment between same-sex and heterosexual couples.
4.6.2 We note the Document's emphasis that legal structures of civil partnership and marriage are quite separate, and that the proposals are not concerned to alter current UK and European legal definitions of marriage as a permanent union between a man and a woman. We further recognise that the proposals do not in any way threaten a traditional understanding and practice of the institutions of marriage and family. Nevertheless, we are not convinced by the Government's arguments not to extend civil partnership registration to other heterosexual familial relationships. Not enough attention has been given to those who are not free to marry for religious or legal reasons, but who might still wish to commit themselves in a registered civil partnership (cf. 5.4 below). We are concerned that limiting civil partnership registration to same-sex couples may create further structures of inequality in wider society.
4.6.3 A number of lesbian and gay Catholics would reject marriage as a model for their relationships, seeing it as inherently heterosexual and patriarchal, with an inbuilt propensity to perpetuate an unequal power balance in the relationship. Others, however, would wish to describe their long-term relationship, within a redefined understanding of marriage, as a covenanted and sacramental relationship. Some therefore would wish Government to explore legal redefinitions of marriage, both within the UK and Europe, with a recognition of those same-sex unions defined as marriage in other EU countries being effective in the UK.
4.7 Definitions of Family Relationships
4.7.1 There are numerous areas of statute law in which there are passing references to family relationships which are defined by using the terms wives, husbands, etc. A good example is Section 153(4)(bb) of the Companies Act 1985 which refers to employees of a company and includes "wives, husbands, widows, widowers, children or stepchildren under the age of eighteen." The provisions for such categories of persons which can occur in many areas of law are often not material in themselves, but could give rise to all sorts of anomalies if a concept of civil partnership is introduced, since the legal definition of "husbands" and "wives" will not include it. We propose that a blanket form of interpretation should be given so as to state that references to married couples or husbands and wives in legislation generally should include registered partners. Specific exemptions could be made if there are good reasons why married couples should be treated differently from registered partners, but at present these seem hard to identify.
5. Responses to Questions - Section 10 (pg.65)
5.1 Are there other measures that could be taken to further ensure the safe registration of same-sex couples while meeting the need for a public register ?
We support the public nature of the Civil Partnerships Register. What is at issue is the degree of publicly accessible information available. We suggest that couples have an option of either their names or a registration code being used. We have outlined some of our concerns in (4.2.2)
5.2 Do you wish to comment on the proposed recognition arrangements in paragraph 4.19 ?
We support the principle of integrity of arrangement for Civil Partnership Registration across all countries of the United Kingdom, and certainly mutual recognition. Following the 'Good Friday Agreement' between the Irish and British Governments, relating to Northern Ireland and the need for some balance between arrangements in the North and the Republic of Ireland on a range of social policy matters, we believe that it is important to formally raise the matter of civil partnerships registration with the Irish Government, as well as the Northern Ireland Assembly. There is also an anomaly in terms of Roman Catholic ecclesiastical jurisdiction in that England & Wales are covered by a single Catholic Bishops' Conference, as is Scotland; the Catholic Bishops Conference in Ireland covers both Northern Ireland and the Republic of Ireland.
5.3 Do you wish to comment on the proposed arrangements for the electoral process in paragraph 7.4 ?
We support the Government's proposal in this regard.
5.4 Do you wish to comment on the possible arrangements for unregistered same-sex couples in relation to income-related benefits in paragraph 7.20 ?
We note the proposal that a cohabiting same-sex couple should be treated as a couple for the purposes of entitlement to income related benefits, even if this couple has chosen not to register their partnership, on the analogy with heterosexual couples who are assessed in this way, regardless of their marital status. This raises complex issues. We do not wish to assert that a same-sex couple should be treated any better than a heterosexual couple in similar circumstances; this would be merely reversing the injustice which currently exists.
However, the current position with regard to heterosexual couples could be described as unjust. A couple who have chosen not to seek the legal benefits of marriage, or perhaps are not free to do so, have the burdens of marriage imposed upon them, as if their decision not to marry were seen as some sort of evasion of their obligations. Other areas of law relating to marriage, which we note are to be reflected in the civil partnerships proposals, emphasise that it is voluntary, and the benefits and burdens are a package which a couple is free to accept or not as they wish.
In practical terms, the real objection to this proposal is that it raises confusion between a couple who have formed a family relationship, and a flat-sharing arrangement where pooling of resources would not be expected. It also suggests that social security staff may be expected to make intrusive enquiries into claimants' sexual activities. Once the legal structure of marriage or civil partnership is taken away, we expect that the rule of thumb used by social security officers to determine the difference between a couple and a flat-sharing arrangement will be: Do they sleep together? This is an offensive return to notoriously bad inspection practice rightly criticised in the past, and inconsistent with the legal structures which the DTI proposals appear to support.
In conclusion, we do not consider that same-sex couples should be given preferential treatment over heterosexual couples, but at the same time regard this proposal as unjust. A more equitable approach would be to change the rules as they apply to heterosexual couples and we would therefore urge the DTI to engage in cross-Government dialogue on these issues.
Tax: We note that taxation issues are not dealt with in the DTI's proposals presumably since such matters are dealt with through the annual budget process. However, we view the current position with regard to Inheritance Tax, whereby married couples are exempt but no such exemption exists for same-sex couples, as a particular area of discrimination and hardship. We therefore hope that the current momentum to eliminate the injustices of the current failure to grant legal recognition to same-sex partnership will be continued by means of a reform of the fiscal system in similar terms.
5.5 Do you wish to comment on the proposed arrangements for unregistered same-sex couples in relation to child support in paragraph 8.5 ?
We support the principle of equity in these particular proposals, subject to our concerns expressed in 5.4.
5.6 Are there any other rights and responsibilities not discussed above that you think should be given to registered partners ?
See our comments in 4.3.
5.7 What do you think of the term 'civil partnership registration' ? Is there a term that you would prefer ?
We have no particular recommendations in this regard.
5.8 Is there a more attractive term to use than 'registered partner' ? (Feel free to be creative!)
Possibly 'civil partner'.
5.9 Do you have any other comments ?
No.
6. Conclusions
6.1 Aside from the distinctions in Roman Catholic teaching on sexuality, referred to in 2.1/2.2, Catholic dogma is not a dead system but rather marked by a keen appreciation of the development of its doctrine. In the area of personal morality and choices this includes this dynamic understanding of doctrine and the Church's teaching role, and the primal authority of the voice of personal conscience. The lived experience of the human community of the Church as it receives, accepts or not, such doctrine is part of this dynamic. There is therefore a reciprocal relationship between the community of the Church, its individual members and its teaching function so that doctrinal authority, far from existing in a vacuum, is conditional upon the reception of particular teaching by the faith community whose question will always be: 'Yes, but is it true?'
6.2 Seen most clearly in the areas of personal and social morality, it is clear that the Catholic Church is subject to cultural, social, and linguistic change. Its ability to develop and revise its teachings might be most apparent in its historic reversals on slavery, usury, human rights and economic justice. The recent statement by the Vatican's Congregation for the Doctrine of the Faith (CDF) on Same Sex Unions, and the responses by national Conferences of Catholic Bishops should therefore be seen in this context.7 We believe that the recent CDF document should not be given any weight in the UK's civil partnerships consultation. Furthermore, any attempts from whatever source, Catholic or otherwise, to use its arguments to limit the Government's intentions with regard to same-sex unions should be firmly rejected.
The Government must hold firm to ensure that its present rhetoric and policy will be matched with socially just practice in respect of lesbian and gay partners.
6.3 In 1992 the late Cardinal Hume outlined what he considered some important criteria for considering lesbian/gay related legislative proposals. These were:
- are there reasonable grounds for judging that the institution of marriage and the family could and would be undermined by a particular legislative proposal ?
- would refusing a proposed change in the law be more harmful to the common good than accepting such a change ?
- does a person's sexual orientation or activity constitute a sufficient and relevant reason for treating that person in any way differently from other citizens in specific
circumstances 8
In the light of the above we would wish to affirm most strongly that we consider the Government's Civil Partnerships are fully consistent with our Church's commitment to the dignity of the human person, the promotion of social justice, the protection of civil liberties and the enhancement of the common good.
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7. Notes/References
(1) Testimony of Professor James F. Keenan SJ to the Massachusetts Legislative Hearing opposing the proposed H.3190 amendment which attempted to outlaw legal recognition of same sex unions, 28 April 2003.
(2) Cabaj R. and Stein T., Textbook of Homosexuality and Mental Health, American Psychiatric Press, Washington DC, 1996.
(3) Ratigan B., 'Growing up Catholic, growing up gay,' The Furrow, 52(2): 90-100, Maynooth, Ireland 2001.
(4) Carl D., Counseling Same-Sex Couples, W.W. Norton, New York, 1990.
(5) Davies D. and Neal C. (ed) Pink Therapy: a guide for counsellors and therapists working with lesbian, gay and bisexual clients, Open University Press, Buckingham, 1996.
(6) King M., et al., 'British psychiatry and homosexuality,' British Journal of Psychiatry, 175: 106-13, 1999.
(7) The Congregation for the Doctrine of the Faith, 'Considerations regarding proposals to give legal recognition to unions between homosexual persons,' Vatican City, 31 July 2003.
(8) Hume B. Cardinal, 'A Note on the Teaching of the Catholic Church Concerning Homosexual People,' London, 1997(revised).
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