Helen Dale won the 2012 Law Society of Scotland Essay Award for a piece entitled ‘A Plea in Law for Equal Marriage’. The Journal of the Law Society of Scotland has published that piece.
Helen explains at Skepticlawyer why she wrote the piece. It’s because the arguments in play were crap.
I suspect that this is why the arguments both groups used (and continue to use, alas) were very, very bad.
Now, I agreed with the LGBT ‘side’; that’s why I wrote the essay I did. But their arguments were crap. And the Catholic Church’s were similarly awful. Sometimes it really is a case of ‘play to your strengths’, lads (even when the batsman in question, like Kevin Pietersen, wants to belt everything on the leg side).
To that end, I wrote an empirical, positivist essay on the arguments for same-sex marriage. When I reference ‘human rights’, it is only incidental to my major focus: providing empirical proof and establishing formal validity for a proposed change in the law. At all times, I kept my eyes focussed on the human institution of the Scottish Parliament (‘it looks like someone swallowed a jigsaw,’ says one friend of mine ‘and then threw up on the Old Town’).
The virtue of making an empirical argument focussed on validity and ‘doability’ is that it allowed Peter Nicholson, The Journal’s splendid editor, to extract a natural law argument against equal marriage from John Deighan, the Parliamentary Officer for the Roman Catholic Church in Scotland.
This is the right way around, jurisprudentially, and both arguments are better for it. The Catholic natural lawyer draws on his tradition, bringing forth its contribution to human rights law and the notion of entrenched rights. The Skeptic legal positivist draws on her tradition, bringing forth its contribution to liberal parliamentary institutions and scientific rigour.
In the prize-winning essay Helen sets us straight on the history (as she has done here, enlighteningly).
It has become fashionable to argue that marriage in the past was always loveless, and a matter of arrangement and alliances, but that is just as historically illiterate as universalising the modern world’s focus on love and affection.
Although the assertion that Christianity invented marriage is ridiculous, it is worth addressing because it is sometimes allied to another falsity: that Christian Europe was the first truly monogamous civilisation. In fact, pagan Rome made monogamy a marital universal, with its great Empire imposing civilisational family values on conquered peoples in a manner to make the governors of British India blush.(7)
The difference, of course, is that classical Roman monogamy was strikingly modern, while the later Christian version (enacted, of course, by Roman Christians) was not. Classical Roman marriage law protected women’s property,(8) respected women’s autonomy,(9) did not impair married women’s capacity to contract, and allowed unilateral and consensual divorce to both men and women on equal terms.(10)
By contrast, Christian emperors constricted access to divorce, eventually banning it outright; severely impaired a married woman’s capacity not only to manage her property but also to leave the house without her husband’s permission, and – under Constantine – attempted to make (female) adultery a capital offence.(11)
Read the whole thing.