The Marriage Equality Bill and the label on the box

The Act to amend the Marriage Act (etc) is storming through parliament as it inevitably would given the repeat of the concomitant factors that allowed for a spate of progressive cum liberal laws in 2013. We have a Labour government elected with a huge margin and therefore with a comfortable majority in Parliament that is about to kick off a new season of legislative wonder. True to form the first bill on the table is an inexpensive one – no capital expenditure is involved – yet it is a huge investment in “street cred” capital when it comes to waving the progressive flag.

It’s the timing, stupid

Speculation at a purely pragmatic political level would have it that Muscat’s timing for this bill is justified by two main reasons. The first is precisely the idea that his government is seen to be the champion of liberal rights – the great reformer that has shot Malta to the top of the tables for civil liberties. In this case the “seen to be” is crucial. There is no capital cost and more importantly no political cost because the “Taghna Lkoll” wave is in full tsunami flow and even the most bigoted conservative within Muscat’s movement will right now sing his praises for whatever liberal achievement he is told has been achieved. Yes, this is definitely l-Aqwa Zmien and Muscat will be cashing his civil liberties cheque as often as he can – he has already done so before the Pana committee (what a wonderful distraction) at the EP.

Which brings me to the second reason for the timing. Debates on civil liberties in Malta tend to be rather controversial. Like most debates in Malta the tendency is to argue broadly without much attention to either fact or detail. The added value for Muscat’s government is that civil liberties debates tend to be a particularly sensitive issue for the party in opposition. Rushing the “debate” on civil liberties at a stage when the opposition is still in disarray gives an added value to the image of “Civil Liberties Champion” that Muscat tries to portray. It helps if the argument is reduced to black and white “for and against progress” levels without any nuance whatsoever. This is the time to expose the so-called “dinosaurs”and to purportedly portray the opposition in an ultra-conservative light. Antics and misinterpretations by the dinosaurs of the like of David Agius and Edwin Vassallo will be made to stick out like the ugly conservative warts that they are. The dinosaurs will provide the perfect platform on which to build the straw man wherein to bundle together all the critics of the bill whatever their reasons may be.

The Facts of the Matter

Which brings me to the content of the legislation itself. There are a few incontrovertible facts that need to be considered.

Fact One: All parties in parliament had committed to introducing equal marriage rights in their respective manifestos (the PD is committed to the manifesto of the PN).  A manifesto by a party is a manifesto for government. It is not a manifesto for opposition. What we deduce as a commitment to vote in parliament is tied to whether a party is in government (and therefore able to produce the law as envisaged in the manifesto) or whether it is in opposition (and therefore within the limits afforded by its minority in parliament how far it can influence a bill in order to reflect its manifesto). The Bill before the 17th legislature (before the parliament elected in June) is a bill drafted and proposed by the party in government and therefore embodies its conception of what equal marriage is. I will leave it to the PN to solve its own internal disagreements however I disagree with Simon Busuttil on one point. The PN (and PD) are not bound to blindly accept any law purporting to legislate on equal marriage proposed before parliament for the simple reason that the content might not reflect their concept and drafting of a potential equal marriage. That is how and why an opposition exists in Parliament. It is part of the checks and balances for the rule of law to properly function.

Fact Two: The title of the Bill in question is “An Act to amend the Marriage Act and various other laws in connection with the introduction of marriage equality and to provide for other matters dealing with it or ancillary thereto“. Let us be clear. The purpose of the act is clearly the introduction of marriage equality. Translated into layman’s terms it is an act that is intended to ensure that the institute of marriage that has hitherto been an institute exclusive to heterosexual couples is made accessible to same-sex couples. That is clearly what the label says on the box. That is what this act should be doing. Nothing more nothing less. In other jurisdictions, such as that of England and Wales (we cannot say UK since Scot and Northern Irish law are regulated separately on this issue), the solution was simple. Very simple. Under the “Marriage (Same Sex Couples) Act 2013, article 1(1) stated concisely and without any complications: “Marriage of same sex couples is lawful”.

Fact Three: Here’s a little known fact. When you read through the current provisions of the Marriage Act and the Civil Code combined you will notice a very interesting anomaly. Nowhere in the law is marriage between same-sex couples prohibited. Madness, I hear you say, why all the fuss? Well it’s not that straightforward. True, nowhere in the restrictions to marriage section is there an outright prohibition of persons of the same sex getting married. The restrictions include age, infirmity and degrees of affinity (articles 3,4 and 5 respectively) but do not, surprisingly include any specific prohibition of same-sex marriage. What has stopped a gay or lesbian couple from turning up at the registry and asking to get married then? The answer is twofold – the first is custom (consuetudine) because until now it has been presumed that society regulates marriage as a union between persons of opposite sex. The second is the more formal problem of nomenclature because even though most of the provisions already refer to spouses or “persons to be married” without being gender specific you do encounter articles such as 15(2) of Cap 255 that refer to the Registrar (or officiating officer) declaring the married persons to be “man and wife”. That, and the myriad of forms that need to be adapted to be able to accommodate same-sex couples registering their marriage, are the main obstacles to same-sex marriage to date.

Rushed Cats and Blind Offspring

So now to the Bill. We all agree that the intention is to introduce the possibility of same-sex marriage. It’s even better with all parties involved on board. All parties agree that same-sex marriage should be a possibility under Maltese law. How do we go about introducing that? The solution in other jurisdictions, as I already referred earlier, was a glaringly obvious and simple solution deserving of Occam’s Razor application of the year. In layman’s terms what is done is simply (yes simply) to add to what already exists. The England and Wales option was to declare clearly that “Marriage of same-sex couples is lawful”. Angela Merkel’s “Schabowski moment” led to a change in German law which will now state the following: „Die Ehe wird von zwei Personen verschiedenen oder gleichen Geschlechts auf Lebenszeit geschlossen.“ ( “Marriage is concluded by two persons of different or same sex for life.”). Again, simplicity is in order – to an already extant regime of marriage (between persons of different sex) is added a parallel (and equal) regime (between persons of the same sex).

That is in essence what the introduction of Same-Sex Marriage entails. Nothing less. Nothing more.Sure certain provisions of the law would require an add-on for interpretative purposes in addition to the existing provisions in order to allow their interpretation in the case of same-sex couples. It is not necessary to change these clauses into a more neutral term. What would be done is to add an interpretative section or clause (whatever the case may be) that applies in the case of the newly added parallel regime of same-sex couples. Likewise, where for some natural reason, certain marriage-related clauses cannot apply in the case of same-sex couples (as has been ably argued by my colleague Dr. Justin Borg Barthet) this would be clearly stated in the law: for example the problematics surrounding the grounds of impotence or consummation in the area of nullity of marriage could be solved by either exempting same-sex couples from their application or by qualifying their application in such circumstances.

Any law purporting to do that should (and probably would) have the support of the whole of parliament. Doesn’t Bill no.1 of the 17th Legislature do that then? Well it says that it does in its title but it goes on to do far more than that. This is where the problems start.

Same, same but different

Bill no. 1 has one major problem that pervades the whole exercise. It is in fact an exercise in declaring everybody SIMILAR and in denying the existence of DIFFERENCES by paring down as many of our major codes as possible to the LOWEST COMMON DENOMINATOR. The confusion in the drafters’ head lies primarily in their conception, or rather misconception, of equality. Equal rights you see, does not mean that everybody is the same but rather means that everybody – no matter how different – is to be treated equally before the law. This is the age-old struggle of feminism – a justified struggle that recognises that even though men and women are different (and accepting that difference) it does not mean that they should not have equal rights. This normative distinction is hard to explain in normal circumstances. What it means is that for example when it comes to salary the law ensures equality by saying that both men and women should be paid equally. Given the same job, under the same conditions, it is illegal for a man to be paid more than a woman. In order to guarantee this equality the law RECOGNIZES THE DIFFERENCE. You have a MAN, you have a WOMAN and you have a law stating that the WOMAN can not be paid less than the MAN because she is not a MAN.

Helena Dalli’s Bill tries to do something different. To continue using the example given, in order to get equal pay it tries to redefine men and women. No more men, no more women. Just persons. The wonderful thing is that if it were really a case for legislation for equal pay then this solution wouldwork perfectly. All persons deserve equal pay. Simple. This is not equal pay though. This is the institution of marriage. Remember and bear this in mind. The declared intention is to introduce same-sex marriage with all the consequences NOT to alter the current institution. The nationalist party “conservatives” got the wrong end of the stick in their criticism of the bill – they fell into the ploy of the progressives who would label them conservative dinosaurs.

The real problem of the bill is that it is a rash job that ignores all rules of legal interpretation. It opts for the more convoluted option of combing through major laws and in each instance reducing to the lowest common denominator any definition. The agenda is clear – ride the momentum and push through changes of nomenclature for the sake of winning while the stakes are high. It is not, as explained earlier, a necessary exercise. A parallel, well thought out regime for same-sex marriages would have given same-sex couples an equal foothold in the institution without whittling away from an institution that has withstood the test of time.

The honourable fight for equality has been hijacked by an extremist faction intent on pushing the limits. For a long time, the governments of this island have lent more than an ear to the bishops and archbishops when regulating civil liberties. The tide has turned and it is now the turn of the Rainbow Church to have the ear of the government. The path that has been taken is a dangerous one. The misconception (and I am not sure it is an error, more a wilful construction) of the workings of Equality lead to definitions that open the floodgates for legal lacunae.

The bill will inevitably pass through parliament as it is. Muscat wants a show of force and mistakenly interprets this as an easy victory of liberal forces while shaming the PN further for having allowed its conservatives to bleat once again. In actual fact though there is little justice and equity in a bill that is bulldozering through parliament beyond debate using the brute force and euphoria of an electoral victory. The MGRM and other lobbies purring away while dismissing any constructive criticism with their straw man argument are unable to conceive the damage to their own cause that is being wrought by this kind of legislation. Level-headed members of the public, many of whom have absolutely no bone to pick with the introduction of Same-Sex Marriages will now be more wary of any proposals from the quarter of these latter-day extremists.

Right now it is tough to speak out and try to criticise objectively because the inquisition is out en masse. Ironically for a lobby that so despises labels and labelling they seem to be quick to throw a label or two in the direction of whoever dare criticises their bulldozing project. The rule of law is in no better place when dialogue and consultation are replaced by imposition. This law will pass through parliament but it is no victory for democracy or for representation. Sadly, expect more of the same for now.