The UK Marriage (Same-Sex Couples) Act 2013: A Policy Analysis

“….the Act promoted a ‘separate but equal’ strategy…endorsing an androcentric understanding of marriage…”

SECTION A: Critical Overview of the Policy

The Marriage (Same-Sex Couples) Act (2013) or the MSSC Act is an extension of the primary legislation (Civil Partnership Act, 2005), making same-sex couple marriage lawful in the UK. This Act becomes an intriguing policy to researchers due to its contentious nature that provoked more than 228,000 responses during the pre-legislative consultation (Government Equalities Office, 2013). For this purpose, we will deploy the post-structural analytical strategy called ‘What’s the Problem Represented to Be?’ (WPR), as proposed by Bacchi (2012). This method renders policies as continuously ‘productive’ – where ‘problematisations’ are represented through discourses that shape our social knowledge, and in turn, govern us. Further, it identifies how issues are framed and those who have been silenced during the policy process (ibid). This approach will underpin this analysis and aim to overcome positivist, interpretive and realist paradigms. This policy analysis will seek to deconstruct the MSSC Act by highlighting its objectives, policy paradigm and methodology for data collection.

Furthermore, it will discuss the political dynamics and ideological context surrounding the Act, emphasising normative discourse and models of governance. Then, it will identify the agenda-setting and its location on the policy cycle, the model of governance and implementation issues. Finally, it will be argued that the ‘winners’ and ‘losers’ of the MSSC Act remains inconclusive through a cost-benefit approach.

The temporal and spatial contexts can determine the nature of the policy it has been placed in. This refers to policy paradigms that conceptualise policy change and integrate normative and ideological thinking within the policy community (Stoker and Taylor-Gooby, 2013). Building upon Hall’s work regarding paradigmatic shifts (1993), Henriksen (2013, p. 482) postulates that policy change occurs within internalist (constructivist) or externalist (Bayesian) parameters. While the internalist voice recognises the epistemological shift being ‘driven by struggles for authority utilizing ideas’, the externalist voice-views change due to trial and error (ibid). Combining these two creates a model where policy frameworks rely on competing ideas and extend outdated historical policies. This is true for the MSSC Act, which emerged as a response to the evolution of marriage that could not fit within the confines of the previous legislation (Civil Partnership Act, 2004). The policy was also motivated by Cameron’s drive to political power – which meant ‘detoxifying’ the Conservative Party’s image of Thatcherite elements and ideologically repositioning to a more socially liberal stance (Lee and Beech, 2011).

The data gathered for this policy analysis paper can be divided into primary and secondary data. Preliminary data included policy documents issued by the government that analysed current and historical legislation regarding marriage acts. It also included speeches given by politicians and pressure groups that represent the discursive elements of the policy analysis. Secondary data involves evaluating relevant statistics issued by the Office of National Statistics and qualitative surveys conducted by think-tanks. It also includes academic literature that supports the information within the primary data and provides different perspectives on the topic. It also contains media sources, e.g., newspapers, to map out the normative discourse present regarding the issue of the same-sex marriage bill. This helps us analyse attitudinal shifts within the public and how problems become problematised by various stakeholders.

SECTION B: Political and Ideological Drivers

In terms of its objectives, the MSSC Act (2013) aimed to decriminalise same-sex marriage and allow same-sex couples to marry lawfully, either in a civil or a religious ceremony (with a clause left solemnisation up to the discretion of religious authorities, i.e., ‘quadruple lock’). As mentioned previously, this Act was an extension of the Civil Partnership Act (2004), which was seen as ‘sexual apartheid’ by supporters (Tatchell, 2005). It carried the legal notion that same-sex relationships are not equivalent to heterosexual ones, which reinforced a heteropatriarchal marriage model. Proponents argued that this violated human rights under Articles 12 (the right to marry) and 14 (on non-discrimination) as well as Articles 12 and 8 (respect for private and family life) of the European Convention on Human Rights (Winter, 2018). Moreover, studies confirmed that ‘minority stress’ has a detrimental impact on relationship quality within minority groups (Kneale and Sholl, 2013). While acknowledging that this was a step in the right direction, some supporters argued that the law had not gone far enough and would continue to perpetuate ‘formal and substantive inequality’ (Beresford, 2016). This is because the Act promoted a ‘separate but equal’ strategy by excluding the LGBTQ community from the concept of consummation and adultery, thus, endorsing an androcentric understanding of marriage (ibid).

Interestingly, the legislation was passed under the Conservative-Liberal Democratic coalition, something unheard of in Tory history. In the past, Thatcher had claimed that the ‘breakdown of family values’ led to crime and unemployment (Douglas, 1990, p. 413) and Brown suggested that these families were ‘chaotic and dysfunctional’ (Jensen, 2012, p. 5). Indeed, the introduction of this bill was not one of consensus but of turbulence. This can be evidenced by the fact that the Conservative Party lost 35-40% of its membership after its passing in 2013 (Brownsell, 2019). Debates revolved around religious freedom and the sanctity of traditional marriage, with MPs expressing that such a measure would lead to the erasure of laws and customs since ‘family’ is fundamental to classical conservatism and Christianity (Routledge, 2015, p. 92). Moreover, gay relationships were perceived as more promiscuous and illegitimate than heterosexual ones. It was feared that these qualities would toxify the institution of marriage (Eekelar, 2014, p. 20). Hull claims that Conservative MPs deployed discourses of democracy (religious freedom) and morality where they saw marriage as the ‘framework for raising children (2001).

The transition from neoconservatism to ‘compassionate conservatism’ within the Party displayed a paradigmatic shift through the MSSC Act in 2013. Supported by Cameron, the adaption to socially liberal values was a part of the more comprehensive modernisation project’ marked by similar political rhetoric, such as keeping the NHS and striving for a fairer society (Bochel and Powell, 2018). MPs in favour of the bill proposed a more libertarian argument based on Mill’s ‘Harm Principle, stating that same-sex marriage should not be forbidden as there is no proof to suggest that it would cause harm to others (Gilbert, 2016). Other MPs promoted a Burkean argument that society had evolved and institutions like marriage should be adapted. Furthermore, other MPs followed an assimilationist trajectory, stating that same-sex marriage was profoundly a conservative idea, thus, incorporating the homosexual ‘other’ within the dominant heterosexual paradigm (ibid). This civilising process resulted in the depoliticisation of the gay identity, which left the LGBTQ community to accept legal equality over social/normative quality (Monahan, 2019). Thus, gay marriage becomes an example of the internal ideological divide within the Conservative Party.

This internal ideological divide was reproduced externally by non-party actors such as religious institutions, media and pressure groups that formulated the broader normative discourse surrounding the MSSC Act (2013). Theologically, the Levitical prohibition decreed death as a penalty for sexual activities outside the marriage between a husband and a wife (Eekelar, 2014). The Church of England has utilised such dogmatic beliefs as they maintained that extending marriage to same-sex couples would ‘dilute’ its meaning (ibid). Similarly, the Roman Catholic Bishops have asserted that such social change can impact the ‘social-stability of our society’ as it ignored the interests of children (ibid). This alludes to the fact that religious opposition to homosexual marriage was framed by the assumption that the only purpose of marriage is procreation. Pressure groups such as the charity Christian Watch have emphasized ‘sinfulness’ of same-sex practices, describing them as a ‘perversion’ (Kettell, 2013). In addition, Keep Marriage Special and RealMarriage.org.uk have been explicit in their theological groundings and liberties, such as religious freedom (ibid). Opponents claim that redefining marriage for the sake of a small minority community discriminates against people who wish to conform to heterosexual understandings and pose a threat to religious institutions.

In contrast, the bill’s passing points to a newer trend towards secularisation that is becoming pervasive in neoliberal societies. This is elucidated by non-state party actors and grassroots attitudes that have pushed for the enactment of the MSCC Act (2013). Religious organisations such as Quakers (Society of Friends), Reform Judaism and Unitarians have displayed their support to opt-in to conducting marriages, thus, exercising their right to perform same-sex marriage ceremonies in a religious setting (Routledge, 2015). Furthermore, campaign groups such as Stonewall announced their pro-same-sex marriage stance, emphasising that this measure would reduce prejudices and discriminations that gay people face (House of Commons, 2014). Indeed, surveys suggest that 60% of the UK population supports the MSSC Act (NatCen, 2015). In a similar vein, the Coalition for Equal Marriage argued that Civil-Partnerships were not enough to grant full equality in marriage for same-sex couples when compared to heterosexual couples (Shipman and Smart, 2007). However, partisan attitudes indicated that Conservative identifiers are less supportive of gay marriage than Liberal Democrat and Labour supporters (Clements, 2014). Grassroots attitudes replicate the fault-lines within the coalition government on the issue of same-sex marriage.

Furthermore, the religious arguments made by opponents of the bill become redundant when one considers the long-term decline of religion in Britain. Official census statistics show that adults that define themselves as Christians in the UK have declined from 71.7% in 2001 to 59,3% in 2011 (Kettell, 2013). This information contextualises the emerging evidence of using democratic rather than theological discourses against same-sex marriage, highlighting a largely secularised culture (ibid).

SECTION C: Problematisation, Implementation and Governance

It is helpful to indicate the typology of the policy. The MSSC Act 2013 is a regulative and redistributive piece of legislation, as hypothesised by Lowi (1972). The regulatory and redistributive arena in this terminology reflects the governmental processes understood by the pluralist school of thought. The MSSC Act becomes a regulatory policy as it involves the daily conduct of business by the state apparatus. It seeks to regulate private and public stakeholders by defining the right to marriage for same-sex couples whilst enforcing protective provisions in the case of violation of this right.

Furthermore, it also protects religious bodies by stating that they do not oblige to conduct matrimonial ceremonies if it infringes upon their religious freedom (MSSCA 2013). The legislation can also be seen as a redistributive policy characterised by actions’ intended to manipulate the allocation of civil rights among social classes or racial groups’ (ibid). Opponents and proponents of the same-sex marriage bill have used religious, democratic and moral reasonings to support their side, as noted by the previous section. Albeit by a small-majority win, the coalition government’s tactic to push for pro-LGBTQ reforms such as same-sex marriage displays the redistributive character of the policy.

If situated on a linear policy cycle, the MSSC Act belongs to the ‘implementation’ stage on the ‘initiation’, ‘formulation’ and ‘implementation’ structure (Jones et al., in Levin, 1993, p. 49). However, Hill and Bramley (1986) have devised two stages into ‘development up to the point where legislation is enacted’ and ‘implementation’, which can be critiqued as reductive and simplistic. Debates are surrounding which policy stages are considered essential and which are not. Theorists have noted that these divisions are arbitrary since there is overlap between different levels and settings of the policy process (Bochel and Bochel, 2004). This means that policy interactions are often constituted by structural discontinuities, which suggest no linearity within the policy process. Nonetheless, locating a policy on the policy cycle for practical purposes, such as utilising it as an analytical tool, will aid in mapping out its development. In a more complex policy cycle of nine stages posited by Hogwood and Gunn (1984), the MSSC Act is at the ‘policy implementation, monitoring and control’ stage.

The inconsistencies can explain the lack of progression to the next stage in its implementation. While Northern Ireland only recently passed the MSSC Act in 2020, it is facing regulation delays that prolong the marriage process for same-sex couples (O’Reilly, 2020). Furthermore, the Act has not been extended to areas of British Overseas Territories, which means that not every British citizen has equal marriage rights. In effect, this means that the MSSC Act enjoys both a ‘top-down’ and ‘bottom-up’ approach to policy design. In terms of a top-down method that emphasises that a policy elite ‘makes’ the policy for personal gains, theorists have suggested that the passing of the MSSC Act shows that its compassionate-conservative elements were merely an ‘electoral tool’ to appease more voters (Buckler and Dolowitz, 2012). The ‘bottom-up’ approach suggests the continuous re-creation of policy, marked by the transition from the Civil Partnership Act 2004 to the MSSC Act in 2013. To agenda setting, Anderson (1997) remarks that factors such as the role of political parties, news media and pressure groups structure policy agendas, as clearly noted in the section above. Indeed, the Actor-Network theory asserts that policy and non-policy actors compound legitimacy and authority to decision making by reducing normative debates, exclaiming that their measures are rigid and unproblematic (Latour, 1987). In conjunction, the role of media in terms of ‘cycle of attention’ (Downs, 1972) whilst agenda setting explains why this bill rarely enters current discursive spaces.

Overall, the MSSC Act displays a policy model that is pluralist, secular and incremental in the UK. The immensity of contention, interactions with bicameral legislative structures and political persuasion surrounding the bill highlight the pluralist nature of policies embedded in negotiation and bargaining power (Dahl, 1963). Furthermore, the declining influence of religion and the importance of democratic and moral discourses during the debate of the same-sex marriage bill suggests that the UK policies have moved from traditional to secular outlooks. Lastly, the policy model depicted through the MSSC Act remains incremental, i.e., problems are dealt with as they arise, and the status quo is primarily maintained until its tipping point (Burch and Wood, 1990). Therefore, the passing of the MSSC Act can be seen as a response by the government to the existing pressures from pro-LBTQ reform groups and the political backlash from opposition groups such as the Labour Party.

SECTION D: Analysis and Evaluation of the Policy

 The evaluation of ‘winners’ and ‘losers’ within the MSSC Act 2013 will be identified through Wilson’s ‘cost-benefit analysis, which seeks to understand successful policy-outcome in terms of the diffusion of benefits across numerous interests and groups (1995). The actors that have benefitted the most from this policy belong to the LGBTQ community, as they have received some form of legal equality with heterosexual couples. The pressure groups supporting this stance have also gained more recognition, being a part of this movement. Furthermore, religious organisations that refrain from solemnising same-sex marriage ceremonies can exercise their religious freedom. 

In contrast, the coalition government did not achieve popular support, resulting in its membership loss. The tainted image of a small-majority mandate made the Party more vulnerable to criticisms from opponents. The enactment of the same-sex marriage bill has deeply upset religious institutions such as the Church of England and Wales, Conservative MPs and anti-gay marriage pressure groups that oppose the ruling due to various religious, moral and democratic reasons. However, intersectional groups within the LGBTQ community have adversely been affected. For instance, the quadruple lock has forbidden same-sex couples of faiths to get married within religious institutions in the UK.

Similarly, the significant delay within Northern Ireland means that same-sex couples in those areas will have to wait longer to officiate the marriage. Lastly, this policy can be seen as a missed opportunity for substantive equality because non-consummation and adultery laws do not apply to same-sex couples, rendering them unequal to heterosexual couples. Thus, it is difficult to identify the bill’s primary beneficiaries, dependent on different vantage points. Overall, the detrimental impact on the LGBTQ community of faith, the debate between religious freedom and individual liberties and structural inconsistencies during the implementation process are areas that future policymakers need to rectify and improve whilst considering the ramifications of the MSSC Act 2013.

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Samiya Usmani is a Sociology and Social Policy undergraduate student at the University of Bath. Born and raised in New Delhi, Samiya migrated to the UK in 2017, achieving academic success at A level before progressing to university. Having moved around the globe, Samiya understands the importance of multiculturalism. With a keen passion for social research work, Samiya has hopes of influencing policymaking after she graduates – possibly within the civil service sector. Her curiosity for understanding the world in which she lives in is what drives her love for academia. Her research interests include human rights, race relations, social activism and political participation. In her free time, Samiya enjoys listening to podcasts, reading books, and playing the ukulele.

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