The proposed cohabitation bill risks institutionalising inequality by creating a ‘second class’ division for same sex couples.
Wednesday, August 29, 2012, James Debono
Instead of strengthening the institution of marriage, the state is creating a second class category which lumps together same-sex couples.
Justice Minister Chris Said said the new bill regulating cohabitation will not be providing an alternative to marriage, but safeguard the right of cohabiting partners. He also boasts that this for the first time same-sex relationships will be given recognition by the state.
Yet his reasoning ignores one basic fact: while cohabiting heterosexual couples have a choice to marry and even re-marry if their first relationship breaks up, same-sex couples are excluded from the institution of marriage. Therefore by underlining the fact that cohabitation will not be equal to marriage, Said is simply saying that the State will still discriminate between heterosexual and homosexual relationships.
In reality, nothing short of including same-sex couples in the institution of marriage can redress this inequality. For as long as two separate regimes exist regulating affective relationships, one cannot speak of full equality and social inclusion.
Even from a conservative perspective, the current solution might not be all that desirable. For instead of strengthening the institution of marriage, the state is creating a second class category which lumps together same-sex couples - who want the same sense of commitment as married heterosexuals - with couples (both gay and straight) who opt of their free will for a lesser commitment. Therefore instead of encouraging same-sex couples to seek the same degree of commitment entailed in the marriage vows, the State is relegating them to a second division. Instead of welcoming the fact that marriage is so appealing that gay people want to be part of it, the new law is creating a rival institution to marriage where relationships are reduced to bare transactions.
Obviously not all gays want to marry. The same applies to heterosexuals. A gay friend of mine told me that although he does not want to marry he wants to fight for the right not to marry out of choice.
The proposed regime will simply make this impossible.
By proposing this bill the Nationalist government is repeating the same mistake it did before divorce was introduced. At that stage the cohabitation law was proposed as an alternative to the right to remarry. In this way the PN hoped to address the needs of people whose first marriage broke down but who lived in unrecognised relationships.
But it failed to understand that many heterosexuals were not cohabiting out of choice but because they were excluded from the institution of marriage. In fact the introduction of divorce ensured that this category of separated persons could marry again. The same logic underlines the new law for gay people who aspire for the sort of lifelong commitment entailed in marriage.
Surely one alternative to gay marriage would be to grant all the rights enjoyed by heterosexual married couples to couples in registered civil unions. It is not clear whether Labour is proposing this when it refers to civil unions. If this is the case it would be an improvement over the bill proposed by Said.
But the same criticism I made so far can be levelled against civil unions if this regime does not entail full equality or if it excludes certain rights like adoption or access to IVF for same-sex couples. Labour leader Joseph Muscat has already underlined his opposition to gays adopting children. More fundamentally, this option fails to recognise that the very idea of two separate regimes for heterosexuals and homosexuals militates against full inclusion even at the symbolic level.
For marriage is not just about rights and obligations; it is mostly about making a public commitment with the full blessing of a cultural and social ritual. That is why even where civil unions granting full rights including adoptions are in force as in the UK, the gay community still struggles for gay marriages.
In the past I have criticised the Green party for stopping short of proposing gay marriage despite advocating full equality between same-sex and different sex couples, in all aspects of family life. I am pleased to note that the greens have now embraced full marriage equality and are proposing the inclusion of gay partners in the institution of marriage.
This raises the bar for the two other parties, which is exactly the role taken by Alternattiva Demokratika in other issues for the past two decades. Once again the Greens have assumed a vanguard role.
The new law also stands out as the first crucial test of the Gonzi-JPO coalition. Former Nationalist MP Jeffrey Pullicino Orlando's amendments could make the bill more inclusive. If meaningful these amendments would also test Labour's commitment to real reform. But in the absence of equality, the bill can never be regarded as satisfactory.
The positive aspect of the bill presented by Chris Said is that at least it can set the basis for extending the legal rights of same-sex couples. For prior to Said taking over at the Justice Ministry the impression given was that gay couples would be put in the same category as cohabiting siblings.
Probably, for the Nationalist Party this legislation is already a step too far in a liberal direction. But that in itself confirms that confessionalism remains the party's major drawback in courting liberal voters. For what else apart from prejudice can stop a modern secular party from embracing full equality between same-sex and heterosexual couples? Why should a democratic party proud of its European credentials be cornered in a position of defending inequality?