Gay Marriage: law before society?

by Sarah Walker

The United Kingdom Government has recently reiterated that it wants to introduce gay marriage by 2015. This has led to fierce public debate, of interest not least because the same debate is raging across the pond in the United States of America, playing some role in the 2012 presidential election.

Moving away from the debate based upon personal opinion and religious doctrine I want to focus in on a jurisprudential problem at the heart of this debate, but not yet discussed in mainstream media. The essence of it is this: should the law follow society or should society follow the law?

Of course there are problems that flow from this simple-enough question such as ‘what is society?’, ‘how do we know what society wants?’ ‘is society the same as popular opinion?’, but let us for a moment make the preliminary assumption that society reflects current public opinion. Public opinion at present appears to be a mixed bag – some of the public are pro gay marriage and some are against it. A recent poll quoted in the Telegraph found that 70% of participants agreed with the proposition that marriage should remain a “life-long exclusive commitment between a man and a woman” although clearly this is a slightly different question.

The question for this blog post is: should the law reflect this mixed view and remain as it is (with civil partnerships providing effectively the same rights in law, but with same sex couples not being able to be legally ‘married’) or should the law move beyond confused public opinion and legalise gay marriage in the hope that the view of society follows the change in the law?

A case in point is the availability of the death penalty. In 1965 the death penalty was abolished by the Murder (Abolition of Death Penalty) Act. Public opinion at the time was mixed; perhaps the hope was that society would follow the law. Whether it has or not seems to depend upon which poll you read. The blog ‘UK polling report’asserts that public support for the death penalty has fallen over the decades, although interestingly remained in September 2011 (according to a You Gov poll) at 51% support for the death penalty for murder (and 37% opposed). Either way, the view of the Government in 1965 appears to have been that society should follow the law. If the Government statement at the top of this blog post is to be believed, then it appears the view of Government on this jurisprudential question remains the same – law before society it is.

Should it be so? Well one argument, although not one that directly answers the question, is that it has already been so, so it might as well continue to be. I suspect this will probably be sufficient for political purposes.

Another argument is that society can follow the law where the change in the law is to bring society in line with the values it has (tacitly) accepted to be based upon – e.g. equality before the law. Admittedly this argument hangs tenuously upon the assumption that these values exist and have been accepted as part of society and, in contrast to the preliminary assumption made above, that society is more than just current public opinion. Nevertheless, for pro-human rights advocates like me it is a persuasive argument and has led to my view that, on issues such as gay marriage where the values that we claim underpin our society are at issue, society can and should follow the law…  Not least to make the US election news coverage more interesting!

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