As you’ve probably heard by now, MPs in the House of Commons voted this Tuesday, by 400 to 175, in favour of the bill that will, once it passes through the House of Lords and becomes enshrined in law, allow same-sex couples to marry. I’m pretty ambivalent about gay marriage, particularly about how it has been fought for and used politically, but these thoughts could easily take up a post in their own right, which isn’t what I’m here to write today. Broadly speaking, the news makes me happy. So: hurrah, for equal marriage! We’re all the same in the eyes of the law!
Well, kind of. The conversation about making marriage available to all in the UK has been dominated by the vocal opposition of the Church of England, and it’s been well documented that the bill’s “safeguards” to protect that (powerful, wealthy…) institution deny same-sex couples some options as to where and how their ceremony takes place. Some other “elements of legal asymmetry” are getting less press coverage and are, to me, rather more intriguing. Individuals married to someone of the same sex will not be able have the marriage annulled due to non-consummation, nor divorce their partner on the grounds of adultery with another person of the same sex. Why? Because “Government legal experts failed to agree what constitutes “sex” between same-sex couples.” Seriously.
Perhaps this is where the Church of England could have provided a useful intervention. Its position, set out in 2005 and reaffirmed last month is that members of the clergy can be gay, and can be in Civil Unions (the UK’s different-but-equal alternative to marriage, created exclusively for same-sex couples), on the condition that they refrain from having sex. As the Church is so concerned with its gay ministers not doing it, it must have a pretty clear idea what “it” is. Call me facetious, but I love the image of these legal advisors,(in my head, a bunch of squares in grey suits), given the task of defining “gay sex”: they sit around a boardroom table, staring blankly at one another and scratching their heads, until a troupe of bishops storm in to save the day, armed with flip-charts, diagrams and porn, ready to describe in great detail exactly what sinful “homosexual genital acts” their clergy are dutifully not engaging in.
The exclusion of homosexual acts from the category of adultery pre-dates the same-sex marriage bill. Currently, a woman wishing to divorce her husband because of his affair with another man must cite “unreasonable behaviour”, as adultery is defined as sexual intercourse between members of the opposite sex. I’m pretty sure that the neutral-sounding “between a man and a woman” stands for man-penetrating-woman, so that a woman fisting her male extra-marital lover anally, for example, would be not be termed an adulterer, but merely “unreasonable.” The change in law will mean that two women can marry, but they will only be deemed to commit adultery if one of them sleeps with a man.
Consummation is also pretty specific as it stands, with case law dating back to 1967 stating that until “erection and penetration by the man of the woman with ’emission of seed’” has occurred, a marriage can be annulled. This could, on paper, include oral and anal sex, though I’m inclined to deduce that “the woman” here is a proxy for “the woman’s vagina”. Even going with the broader interpretation, there are plenty of straight people whose sex lives wouldn’t constitute consummation of their marriage: anyone whose (dis)abilities preclude penetrative sex with a penis, guys with erectile disfunction, couples who – gasp – just don’t get off on that kind of sex, perhaps even men who’ve had vasectomies, and no longer “emit seed”.
These understandings of (hetero) sex, with their onus on the phallus and potentially procreative sex, remind us of how intimately connected the institution of marriage (and the construction of marriage as intrinsically monogamous) is to patriarchy, notions of women as property, and the desire of those with wealth and power to produce “legitimate” heirs. The idea that potentially procreative sex is the be-all-and-end-all of straight sex actually seems more enduring to me than the idea that straight sex is the be-all-and-end-all of sex. In my experience facilitating sex education with youth, for example, kids who happily accept that two men or two women can have sex resist with all their might the idea that “sex” between a man and a woman could describe anything other than his penis penetrating her vagina.
The idea that “sex” between a man and a woman is a clear and uncontentious act is flawed and limiting (and perhaps something I’ll blog about in more detail another time), and I’m not saying that the gays should be up in arms fighting for our very own limited, flawed definition of “sex” (though I imagine that is what we will eventually get through case law, as and when same-sex couples seek annulments or divorce on the grounds of adultery). But I have to admit that there is something about the current legal void where the sex part of same-sex marriage should be that makes me a bit uncomfortable. Maybe because it reminds me of The Archbishop of York’s statement that the Church “supported civil partnerships because [they] believe that friendships are good for everybody.” Um, I hate to break it to you, but I’m pretty sure most people in Civil Unions aren’t just good friends.
That a hetero-exclusive definition of sex in marriage law will out-live a hetero-exclusive definition of marriage itself may be nothing more than a bizarre, rather amusing, anomaly. It may indicate a persistent, deep-seated anxiety about homoSEXuality: “we’re okay with you gay people because really you’re just like us (pleasedon’tmentionthewaysyou’renotlikeuslikealltheickystuffyoudoinbedeeeew)”. It may be an invitation to everybody, regardless of gender, body parts and orientation, to open up our understanding of sex, to allow more freedom, individuality, choice, inclusivity, imagination and creativity. And less talk of “emitting seed”.
A lot of people have been quoting Liz Feldman’s excellent take on gay marriage this week, so in her honour I’ll conclude by saying:
It’s very dear to me, the issue of gay sex, or, as I like to call it, “sex”.