Civil partnerships
Civil partnerships
Support from the State
The government’s proposal to retain civil partnerships for same-sex couples was widely supported, alongside its plans for a new process to convert civil partnerships to civil marriages.
But its commitment not to introduce civil partnerships for opposites couples was controversial – most respondents opposed it on the grounds that there should be the same choices available to opposite-sex and same-sex couples. The government had to decide how to manage this. Wider legal implications
The government also had to make decisions about how same-sex marriage legislation would apply to related legislative issues. Some aspects of its proposals required little discussion – for instance, the ceremonies and legal restrictions for civil marriages could remain the same, and overseas same-sex marriages could be treated as such in England and Wales (rather than treated as civil partnerships as previously).
The government also repeated its assurance that existing hate speech legislation would remain unchanged, and expressing the belief that marriage can only be between a man and a woman would remain legal.
Several more complicated questions also emerged. The government had proposed to make dissolution, divorce and annulment conditions the same for same-sex marriage as they were for opposite-sex marriage.
For opposite-sex couples, adultery and nonconsummation were legally defined by case law, so the government proposed to allow new case law to develop to create a definition for same-sex couples.
But several responses from legal experts indicated that it would “not be acceptable to leave such uncertainty in the law”, requiring a different course of action.53 As the law stood, married men, widowers and civil partners had slightly more restricted state pension entitlements than married women and widows.
There were also some differential entitlements between men and women for occupational pensions. The government had to decide what entitlements same sex married couples would have in this context.
Several consultation responses also raised questions about whether teachers would be required to teach that marriage could be between two people of the same sex, even if it was against their religious beliefs. The government had not considered this in its initial proposals so needed to clarify its position.
In September 2012, Maria Miller, a Conservative, took over as culture secretary and equalities minister with responsibility for same-sex marriage legislation. She announced the government’s response to the consultation three months later.
Civil marriage and partnerships the government confirmed its commitment to introducing same-sex civil marriage. It also confirmed that it would retain civil partnerships for same-sex couples, introduce a process for couples to convert their civil partnerships to marriage, and enable individuals to change their legal gender without having to end their marriage.
Controversially, the government chose not to introduce opposite-sex civil partnerships. While most consultation respondents supported them, it argued that civil partnerships were “not intended or designed as an alternative to marriage”, and that it was not clear “what detriment opposite-sex couples suffer by not having access to civil partnerships”.
It also emphasised that the purpose of the consultation was solely to enable same-sex couples to get married, not wider reform, and therefore it did not consider opposite-sex civil partnerships necessary as part of this legislation.
After continued calls for opposite-sex civil partnerships, and a successful legal challenge in the Supreme Court in 2018 on the grounds of discrimination, the government later introduced them in December 2019. Religious marriage Acknowledging the wishes of some religious groups in the consultation, the government confirmed it would legislate to introduce religious same-sex marriages.
But it made clear that it would “ensure unequivocally” that no religious organisation would be forced to marry same-sex couples. It introduced a ‘quadruple lock’ of protections for religious organisations:
Diffeer to Religious Wedding
A religious same-sex marriage ceremony would only be possible if the governing body of the religious organisation had opted in, the individual minister wished to conduct the marriage and the place of worship was registered for same-sex marriages.
- No religious organisation or minister could be compelled to opt in to or conduct same-sex marriages.
- The Equality Act 2010 was amended so it was not unlawful discrimination for a religious organisation or minister to refuse to marry a same-sex couple.
- The common law legal duty on the clergy of the Church of England and Church in Wales to marry parishioners would not extend to same-sex couples.
The Church of England’s canon law, which says that marriage is the union of one man with one woman, was protected so it did not conflict with civil law.
Reunion participants told us that arriving at this decision involved extensive engagement with religious groups, particularly the Church of England (as the largest established church in England).
The Church’s position was that it wanted to be able to exclude itself from performing same-sex marriage ceremonies. One participant noted that it had views about how the opt-out process should work.
Senior Church figures wanted the government to specify that religious organisations had to opt in as a whole institution, ruling out the possibility of allowing individual ministers to choose to marry same-sex couples. This would have split the Church very obviously and would risk in effect permitting Church of England same-sex marriages if most ministers chose to administer them, bypassing the Church leadership.
At the same time, participants explained that the provisions also needed to allow the Church to choose to permit same-sex marriage in future, “to pacify those elements of the Church who wanted progress”.
The quadruple lock achieved the government’s aim of introducing same-sex marriage, while protecting the religious freedoms of those religious groups that both did and did not want to conduct same-sex ceremonies. Reunion participants felt that it was vital for getting the Marriage (Same Sex Couples) Act passed.
However, it did come at a cost. David Cameron has since reflected that stipulating the whole Church must opt in for any same-sex weddings to take place was “excessive”. When it came to marrying divorcees, individual ministers could opt out but their common law “duty to marry” meant they must find an alternative minister.
For same-sex marriages, the state instead revoked this duty to marry and protected the Church’s canon law position that marriage was between a man and a woman, ensuring it was legal for the whole Church to opt out of marrying same-sex couples.
Gay Culture
The bill passed its second reading in the House of Lords by 390 votes to 148. These numbers may overstate support for same-sex marriage – a second reading vote is on the principle of whether to legislate, which some peers supported on principle in accordance with the wishes of the democratically elected House of Commons, and because they wanted to continue scrutinising the bill.
Nevertheless, the bill enjoyed majority support, and many peers spoke passionately in its favour. They also praised the sensitive, respectful tone of the debate, and some noted a contrast with their experience of earlier debates on LGBT+ rights.
Consensus Same-sex marriage is now widely celebrated. Over three quarters of the UK public support it, and only 14% oppose it – less than half the proportion opposing it in May 2013 when the bill was passing through parliament.
Public attitudes and policy have been closely intertwined; more supportive attitudes have paved the way for policy milestones like civil partnerships and same-sex marriage, and once implemented, public support has increased considerably.
National support for same-sex marriage jumped by 24 percentage points between May 2013 and June 2023, with Nat Cen analysis noting a clear link to the Marriage (Same Sex Couples) Act 2013, on top of wider social liberalisation over time Crucially, while a minority of politicians still oppose it, there is no real political platform for challenging same-sex marriage legislation.
It was notable that at the 2023 National Conservatism conference, Conservative MP Danny Kruger’s statement that marriages between men and women were “the only possible basis for a safe and successful society” attracted widespread criticism and was notable for its rarity.
Prime Minister Rishi Sunak actively distanced himself from the remarks.65 It appears that same-sex marriage has become a firmly embedded right, such that it is difficult to see any mainstream party seeking to undo it.
Reflections – what made same-sex marriage policy a success? Policy reunion participants discussed what made same-sex marriage policy a success, and the lessons government can learn from this for future policy. The discussion brought out five key factors:
- the role of long-running cultural change, campaigns from LGBT+ rights groups, the introduction of civil partnerships and political support from the Liberal Democrats in creating the conditions for same-sex marriage to be a high-profile, serious policy option
- the political risks that senior Conservatives – led by David Cameron – took to adopt same-sex marriage as government policy at a time when neither the majority of the public nor many Conservative voters supported it
- the engagement processes the government used to ensure it introduced same-sex marriage while understanding and responding to the concerns of those groups who were opposed to it
- cross-government co-ordination to design and deliver same-sex marriage legislation, including working effectively with departments where it was a low priority
- keeping the bill tightly focused on its priority to manage the scope of parliamentary debate and minimise delays.
Long-running cultural change, activism, the introduction of civil partnerships and support from the Liberal Democrats created the conditions for same-sex marriage policy Reunion participants cited four factors that were important in making same-sex marriage a serious mainstream policy debate, an essential step in its journey to becoming official government policy in 2012.
Long-running cultural change played its part, as UK society has generally become more socially liberal with each generation in recent history. Public attitudes towards same-sex relationships have become much more positive, influenced in a major way by LGBT+ rights groups and increasing LGBT+ visibility.
Acceptance
Future challenges the government still has more to do to address discrimination against LGBT+ people in the UK. Hate crimes based on sexual orientation have more than doubled in the last five years, while hate crimes against trans people have nearly tripled.
Some of this may be due to increased reporting, but not all; the 2023 British Social Attitudes survey has noted an 18 percentage-point decrease in people who say they are “not at all prejudiced” against trans people since 2019, in the context of heated debate about gender and trans issues.
The government is also responding to calls to introduce further legislation to enhance LGBT+ rights. Since 2018 the government has promised to ban conversion therapy in England and Wales, but it has not yet introduced any legislation to parliament.
In November 2023, Liberal Democrat peer Baroness Burt tabled a private members’ bill in the House of Lords to introduce the ban. While it is unknown how far through the legislative process the bill will get, it is likely to have at least a second reading in the Lords and if it proceeds further – especially to the House of Commons – the government will need to decide its stance.
In December 2023, the Outer House of the Court of Session ruled that the government’s use of Section 35 of the Scotland Act 1998 to block the Scottish government’s Gender Recognition Reform (Scotland) Bill was legal.
The Scottish government now needs to decide if it will appeal the case. This reflects ongoing debates about the process by which people can legally change their gender, and how reforming this might affect how the Equality Act 2010 applies and access to sex-segregated services.
Whatever the outcome of these ongoing discussions, the government can learn from what worked well in its approach to introducing same-sex marriage. An effective approach should include understanding long-term trends in public and political attitudes and engaging with a range of stakeholders to understand their needs and concerns.
Where policy decisions require co-ordination across government to implement, the government can draw on prime ministerial leadership and high powered cross-government decision making structures to drive progress.
Conclusion Same-sex marriage is a great government success story of the 2010s. Reunion participants reflected that there are few policies that give such joy to so many people; several ministers involved recall tearful members of the public approaching them on the street to thank them.
Success has many parents and there is no one ‘hero’ of the same-sex marriage story. Many factors played a role: long-running cultural change, the powerful campaigns of LGBT+ rights groups and international communities, Tony Blair’s government introducing civil partnerships, public figures and media outlets like Pink News promoting positive LGBT+ stories, the religious groups calling for same-sex marriage, the Liberal Democrats making it official party policy (led by Nick Clegg and Lynne Featherstone), senior Conservatives (especially David Cameron) standing up for it as government policy and the work of officials in its delivery.
Now, same-sex marriage is a thoroughly embedded and celebrated part of British society. As discussion about the rights of LGBT+ people and other minority groups continues, governments, campaigners and all those involved in public and private debates could usefully learn from the approach the coalition government took to designing and implementing same-sex marriage legislation.
End Off
Chiming with past Institute for Government analysis, reunion participants also noted that the prime minister’s investment in the bill, with regular phone calls between him and Maria Miller, was crucial for sending a signal that this was a top priority for the government, helping to secure collaboration across departments and give a clear direction for their work.
The government kept the bill tightly focused on its priority The government made careful strategic calls when it came to the policy’s design and implementation. Its focus on delivering same-sex marriage, rather than wider marriage reform or introducing opposite-sex civil partnerships, was disappointing for some.
But, in hindsight, it was an effective strategic decision that delivered the government’s priority. Ministers recognised that opening wider marriage law or introducing opposite-sex civil partnerships would at best delay the bill, and at worst scupper it altogether.
Instead, the government focused on getting same-sex marriage legislation passed – setting up the principle of equal legal partnership rights for same-sex and opposite-sex couples – and trusted that questions around other marriage reforms would be resolved later, either of the government’s own volition or through decisions made in the courts (as was the case for occupational pension entitlements and opposite-sex civil partnerships).
A Divided Church
A decade on, the Church still does not allow same-sex marriage and remains caught up in fierce debates about how to reconcile its position. It represents the “Mother Church” for Anglicans everywhere, including in other countries where same-sex relationships remain illegal and opposed by most Church members, but it also has many members in the UK who would like to see reform.
Its recent decision to allow religious blessings for same-sex couples has been widely criticised, both by those who think it is against Anglican faith, and by those calling for the Church to go further to introduce equal marriage ceremonies.
Wider legal implications Responding to the feedback it received in the consultation, the government excluded non-consummation or same-sex adultery as qualifying reasons for annulment or divorce, matching the conditions already in place for civil partnerships. Similarly, it decided that same-sex married couples would be eligible for the same spousal state and occupational pension entitlements as same-sex civil partners. This meant it retained some legal differences in state and occupational pension rights between opposite-sex and same-sex married couples.
For state pensions, the government reasoned that differences in treatment were a legacy from the past and would eventually cease to exist, * and would cost an estimated £80 million to rectify, which it did not deem good value for money.
Questioned by the Public Bill Committee in February 2013, Maria Miller said: “We would be paying disproportionately, and potentially not always hitting the right target.” Differences in occupational pension entitlements have now been resolved after a legal challenge in July 2017.
the government’s consultation response also set out its position on teaching marriage in schools. Teachers would need to abide by existing hate speech and discrimination law and should not express their beliefs “in a way that exploits pupils’ vulnerability”. But if this remained the case, they would be free to describe their belief that marriage is between a man and a woman.
Implementing same-sex marriage legislation Officials now had the task of drafting the bill and getting it through its parliament stages. They originally planned to introduce the bill in parliament in May 2013, but shortly after transferring the equalities brief to the Department for Digital, Culture, Media and Sport (DCMS),
David Cameron asked the new team to achieve this by January 2013 – a tight timeline but one Maria Miller and her team were ultimately able to meet. To draft the bill, civil servants had “lots of very technical detail” to grapple with. Joined up working across departments, the Office of the Parliamentary Counsel and the wider Cabinet Office was imperative. Officials described the DCMS/GEO team as a “rod of iron” in its approach to co-ordinating across government.
Miller cited clear direction and strong support from the top – she spoke to Cameron daily at some points as the bill passed through parliament – as essential to the passage of the legislation. She also noted that the team of officials and lawyers working on the policy were highly committed.
Nevertheless, some of the typical challenges of cross-government working arose. Some reunion participants noted that the process of working with other departments that did not seem to prioritise the legislation could be frustrating.
One recalled some moments of apparent “obstruction”, including comic scenes like needing to lay a statutory instrument in parliament but being told by the Ministry of Defence it wasn’t ready because they “didn’t have the right kind of paper Thinking through the precise legislative impact of the bill was a major exercise.
Reunion participants told us that the government did not want to amend the original 1949 Marriage Act, as this would “open up the whole of marriage law” to amendments, potentially delaying legislation considerably.
Instead, it opted for a separate bill that solely pertained to same-sex marriage, limiting the bill’s scope and reducing the potential for amendment. The government also needed to update every law that referenced marriage to ensure it applied to same sex married couples appropriately.
For simplicity, the Marriage (Same Sex Couples) Act 2013 did this in one go, * but it meant that all legislation affected had to be checked to make sure no loopholes were created.
Support From The Top
The cross-government working group brought together by DCMS/GEO officials worked in parallel with this process to discuss how they should implement legislative changes, from how Department for Work and Pensions (DWP) and General Register Office forms and IT systems needed to change, to the process of changing the judicial rules for same-sex divorces (to exclude non-consummation and adultery as a basis for divorce Officials also continued to meet with stakeholders opposing the bill – like the Coalition for Marriage group – to understand their perspective and manage amendments, aiming to “properly address their concerns or explain why we can’t address their concerns”.
A few months before the bill passed, Miller learnt that same-sex couples had been able to marry in France within a couple of weeks of legislation passing. She requested that officials expedited their implementation plans to allow same-sex couples to marry as soon as possible.
Officials drew up a new plan that would allow the first marriage ceremonies to take place eight months after legislation passed (March 2014), cutting “six months off the original timetable”. Other provisions requiring more time to implement – the ability to convert civil partnerships to marriages and obtain a gender recognition certificate while remaining married – were pushed back to December 2014.
Ministers were not overly concerned about having the total votes to pass the bill – they knew there were enough MPs from Labour and the Liberal Democrats – but they were mindful of internal government divisions over the policy, particularly within the Conservative Party.
A “great deal of thought and care” was given to how ministers would handle debates within parliament. Nevertheless, several backbenches’ MPs threatened the bill’s passage through amendments.
The biggest threat was from an amendment introduced by Conservative MP Tim Loughton, which would grant civil partnerships for opposite-sex couples. While many proponents of same-sex marriage supported this principle, it was widely seen as a “wrecking amendment”, expected to delay implementation of the bill by at least two years and into the next electoral cycle.
Labour initially supported the amendment but changed tack after an appeal from Conservative whips for their support, and the government in turn committed to conduct a review of civil partnerships for future legislation.
The amendment was rejected, and the bill passed its third reading in the House of Commons by 366 votes to 161. Cameron noted that 134 of those voting against were Conservatives – some clear “lost causes”, but others “shocked” him.
Moving Forward
The long history of activism and legal battles has been vital to addressing discrimination against LGBT+ communities, expanding their rights to the point that it became possible to call for same-sex marriage. LGBT+ rights groups played a direct role in putting same-sex marriage on the mainstream political agenda in the run-up to the 2010 general election.
From Outrage’s first activist challenge to the ban in 1992, to Peter Tatchell getting senior Conservative politicians on the record saying they supported same-sex marriage, campaign groups put same-sex marriage in the spotlight.
They increased public support for introducing same-sex marriage – amplified by activism in the US – and put pressure on politicians to have a public stance on it, encouraging them to consider it as an option for reform. Government played its part too. Civil partnerships – brought in by Tony Blair’s government in 2005 – were a major legal and cultural milestone for LGBT+ rights.
This established equivalent rights to recognition from the state for same-sex couples and set the context for same-sex marriage to then be seen by some (including, eventually, David Cameron) as “the missing piece” that was needed for full legal equality between opposite-sex and same-sex couples.
Leading the way, the Liberal Democrats also played an essential role in creating the conditions for all three main political parties to commit to introducing same-sex marriage. They adopted it as official party policy shortly after the 2010 general election, and as the junior coalition partner, they created political pressure on David Cameron to support it.
Together, these factors helped create the conditions for same-sex marriage to become government policy. They made it into a high-profile issue, and – as one participant put it – a test of whether Cameron’s modern Conservative Party would move away from its “homophobic record”.
Senior Conservatives, led by David Cameron, took political risks The political courage that senior Conservatives needed to commit to same-sex marriage policy should not be underestimated. First, the step those Conservatives who gave their support in the policy’s early stages took – Boris Johnson, Chloe Smith, Margot James, Mike Weatherley and others.
It should not be forgotten how vehemently many Conservatives still opposed same-sex relationships at this time, let alone same-sex marriage. It was no small thing to express support (and indeed deeply personal for some MPs who were LGBT+ themselves).
Decision LGBTQ
Deciding to introduce same-sex marriage, after persuasion from those around him, was a bold political choice for Cameron. While public support for the policy was growing, in September 2011 when Lynne Featherstone announced that the government would consult on introducing same-sex marriage, still only 46% of British adults supported it. Among Conservatives only 37% supported it. Cameron now says he has no doubts that it was the right decision and cites same-sex marriage as one of his proudest legacies.
Reunion participants noted that this is an important lesson for those in government – in the right context, political risks pay off and legislation can lead public opinion.
They noted that same-sex marriage has amplified many positive stories about same-sex relationships, showing that “all the things’ people were scared of didn’t happen”. One participant commented that people seeing friends and family in a same-sex relationship getting married had particularly helped to change attitudes among older generations.
Public attitudes polling supports this, as the views of 18- to 24-year-olds and those aged 65 and over have converged since same-sex marriage was introduced The government’s stakeholder engagement processes helped it to find the best area for consensus over a controversial issue
The government had decided from September 2011 that it would introduce civil same-sex marriage. Beyond this it had the philosophy that it was important to understand the views of those who disagreed with the policy, and to either “address their concerns or explain why it couldn’t”.
Ministers and Officials
Ministers and officials consulted stakeholders throughout the process of designing and passing the legislation. Reunion participants said that they thought this had helped build long-term consensus around same-sex marriage.
Officials could be “an honest broker in a contested space”, which participants thought helped defuse some disagreements over the policy and guard against any major “lasting backlash”.
Working closely with stakeholders helped the government to design legislation effectively that introduced same-sex marriage while protecting religious freedoms, both for those religious groups that wanted to conduct same-sex marriage ceremonies and for those opposed.
Through sensitive, honest conversations with religious organisations, particularly the Church of England, ministers and civil servants were able to understand their unique position and develop a sophisticated policy design to meet their needs.
They saw that allowing religious institutions the option to opt in to the policy was essential, even for those who did not want to take it up, as it would “pacify” their members calling for reform. For those opting out, they knew the ‘quadruple lock’ needed to unequivocally prevent any legal consequences.
While to some, including Cameron, it now seems “excessive”, the fact that the government supported the Church’s position that religious institutions should opt in as a whole institution showed its sophisticated understanding of the Church’s internal politics, and its willingness to make compromises to deliver its main priority.
Through these close conversations, the government was able to carefully design legislation that occupied the best area for consensus – a crucial factor in building enough political and public support to pass the legislation.
The government used effective cross-government co-ordination to design and deliver same-sex marriage legislation While the GEO was the lead department responsible for designing and passing same-sex marriage legislation, doing so required close collaboration with other departments, including the Ministry of Justice (overall responsibility for marriage law), the Ministry of Defence (army marriages), the Foreign and Commonwealth Office (consular marriages), the DWP (pensions), the Department for Education (teaching) and HMRC (inheritance).
The UK government, like others across the world, famously struggles with effective cross-government co-ordination – departments often work in silos, while policy aims and budgets are rarely shared, so departments often have little incentive to work closely together.
Reunion participants noted that this was a challenge with designing and delivering same-sex marriage legislation, as the GEO was “not a big beast” and “had to make the whole of government do things” that were not a ministerial priority outside of the GEO.
Despite the challenge, officials were able to co-ordinate well across the departments and deliver the bill to tight deadlines. Reunion participants said that regular meetings with a cross-government group were key, helping them to build strong professional relationships across departments, and providing a forum for making decisions about the design and wording of the bill.
The DCMS/GEO team made the most of this machinery. The “rod of iron” authority they had to co-ordinate work across departments – arising from the clear direction of and tight timelines set by the prime minister – meant that they could call on departments to help draft and implement the legislation at pace.
Source
https://www.instituteforgovernment.org.uk/sites/default/files/2023-12/same-sex-marriage-case-study.pdf
